!;!!'■-.!•;'•■■•/'  UC-NRLF 


THE  CONSTITUTIONAL  DOCTRINES 
OF  JUSTICE  HARLAN 


BY 
FLOYD  BARZILIA  CLARK 


•  A  DISSER'iATION 

Submitted  to  the  Board  of  University  Studies  of  The  Johns 

Hopkins  University  in  Conformity  with  the  Requirements 

for  the  degree  of  Doctor  of  Philosophy 

1914 


Baltimore 
191 5 


/" 


THE  CONSTITUTIONAL  DOCTRINES  OF 
JUSTICE  HARLAN 


THE  CONSTITUTIONAL  DOCTRINES 
OF  JUSTICE  HARLAN 


BY 
FLOYD  BARZILIA  CLARK 


A  DISSERTATION 

Submitted  to  the  Board  of  University  Studies  of  The  Johns 

Hopkins  University  in  Conformity  with  the  Requirements 

for  the  degree  of  Doctor  of  Philosophy 

1914 


Baltimore 
1915 


Copyright  191 5  by 
THE  JOHNS  HOPKINS  PRESS 


PRESS  OF 

THE  NEW  ERA  PRINTING  COMPANY 

LANCASTER,  PA. 


TABLE  OF  CONTENTS 


9AQM 

Preface vii 

Introduction 9 

Chapter         I.     Suability  of  States  16 

Chapter       II.     Impairment    of    the    Obligation    of 

Contracts    43 

Chapter     III.    Due  Process  of  Law 59 

Chapter      IV.     Interstate  and  Foreign  Commerce. . .  83 

Chapter       V.     Equal  Protection  of  the  Laws 126 

Chapter      VI.     Jurisdiction  of  Courts 153 

Chapter    VII.     Miscellaneous  Topics  173 

Chapter  VIII.     Judicial  Legislation   193 


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PREFACE 

Two  temptations  assail  writers  of  biographies,  or  of 
studies  of  a  similar  kind, — to  overestimate  or  to  underesti- 
mate. It  is  hard  for  the  student  of  a  man's  career  to  see 
both  sides,  and  after  giving  due  consideration  to  each,  to 
form  a  fair  judgment.  Throughout  this  study  I  have  been 
aware  of  these  two  dangers,  but  I  am  not  sure  that  in  all  re- 
spects they  have  been  avoided. 

It  needs  to  be  emphasized  that  in  studying  the  constitu- 
tional doctrines  of  a  single  great  judge  as  found  in  his  dis- 
senting opinions,  the  prevailing  opinions  of  the  court  must 
of  necessity  appear  at  their  worst,  for  the  criticisms  of  the 
minority  are  of  course  directed  at  the  weak  points  in  the 
reasoning  of  the  majority.  In  so  far,  then,  as  I  have  ac- 
cepted Justice  Harlan's  arguments  and  found  unconvincing 
the  rulings  of  the  Supreme  Court,  it  must  be  remembered 
that  I  am  criticising  only  the  weaker  points  of  a  few  deci- 
sions of  that  great  tribunal. 

This  study  was  prepared  partly  at  the  Summer  School  of 
Columbia  University,  but  principally  in  the  Department  of 
Political  Science  of  the  Johns  Hopkins  University.  I  wish 
to  express  my  gratitude  for  suggestions  made  by  Mr.  A.  M. 
Groves,  a  graduate  student  of  this  University,  who  read  the 
manuscript  before  it  went  to  press ;  I  owe  to  Professor  T. 
R.  Powell,  of  New  York,  my  knowledge  of  many  of  the 
basic  principles  of  constitutional  law ;  but  the  study  was  pre- 
pared under  the  direction  of  Dr.  W.  W.  Willoughby,  of  the 
Johns  Hopkins  University,  without  whose  aid  its  production 
would  not  have  been  possible. 

R  B.  C. 


vu 


TABLE  OF  CASES 


Addyston  Pipe  and  Steel  Co.  v.  United  States 97  (note) 

Anderson  v.  United  States 97  (note) 

Antoni  v.  Greenhow 32,  46-47 

Atchison,  Topeka,  and  Santa  Fe  R.  Co.  v.  Matthews I43-I45 

Backus  V.  Fort  Street  Union  Depot  Co 73-74 

Bailey  v.  Alabama 126,  136-137,  161,  164-166,  170 

Baldwin  v.  Franks   I37-I39 

Baltimore  and  Ohio  R.  Co.  v.  United  States 160 

Baltimore  and  Ohio  Southwestern  R.  Co.  v.  Voigt  191 

Belknap  v.  Schild  32,  35,  Z7,  "SZ,  54 

vB^rea  College  v.  Kentucky  126,  136-137 

Bleistein  v.  Donaldson  Lith.  Co 182-183 

Board  of  Liquidation  v.  McComb  24 

Bowman  v.  Chicago  and  Northwestern  R.  Co 83-86 

Boyd  V.  Nebraska,  ex  rel.  Thayer ^7 

Briggs  V.  Light-Boat   39 

Canada  Southern  R.  Co.  v.  Gebhard 55-57 

Central  Pacific  R.  Co.  v.  California 106-107 

Chambers  v.  Baltimore  and  Ohio  R.  Co 188-190 

i;6ivil  Rights  Cases  126-131,  196 

Congress  and  Empire  Spring  Co.  v.  Knowlton  1 53-154 

Cornell  v.  Coyne  i  lo-i  12 

Cunningham  v.  Macon  and  Brunswick  R.  Co 33-34 

Davis  V.  Gray  22 

iZ)ownes  v.  Bidwell   185 

^orr  V.  United  States  188 

Elk  V.  Wilkins   141-143 

Fairbank  v.  United  States  108-1 10 

Ficklin  v.  Shelby  County  Taxing  District 103-105 

Fidehty  Mutual  Life  Insurance  v.  Mettler  150-151 

Fire  Association  of  Philadelphia  v.  New  York 145-148 

Fisk  V.  Henarie 155-156 

Fitts  V.  McGhee 29,  31,  32,  35 

Foster  v.  Kansas,  ex  rel.  Morgan  Tj 

Freeland  v.  Williams  71 

French  v.  Barber  Asphalt  Paving  Co 80-81 

Galveston,  Harrisburg,  and  San  Antonio  R.  Co.  v.  Texas  ..   112-114 

Geer  v.  Connecticut  1 19-120 

Giles  V.  Harris  126,  134-135,  168,  170-172 

Gulf,  Colorado,  and  Santa  Fe  R.  Co.  v.  Ellis  144-14S 

Hapgood  V.  Southern  32,  34 

Hall  V,  Decuir   90 

wHawii  v.  Mankichi  65,  185-188,  197-198 

Hawker  v.  New  York 180-182 

Hodges  V.  United  States  126,  135-136 

Hooper  v.  CaHfornia 114-117 

Houghton  V.  Payne   198-199 


TABLE   OF   CASES 


Howard  v.  Illinois  Central  R.  Co 121-122,  192 

^Hurtado  v.  California 59,  61-65 

International  Postal  Supply  Co.  v.  Bruce 32,  36,  53,  55 

Interstate  Commerce  Commission  v,  Alabama  Mid.  R.  Co.  52,  124-125 

Joint  Traffic  Association  v.  United  States 97  (note) 

Kawananakoa  v.  Polyblank  40 

Keith  V.  Clark  43 

Kennard  v.  Louisiana,  ex  rel.  Morgan  'j^ 

Leisy  v.  Hardin 86  (note) 

Leloup  V.  Port  of  Mobile  105 

Linford  v.  Ellison   78-79,  168-170 

iJbockner  v.  New  York  191-192 

Louisiana  v.  Jumel 17-25,  2>2;  34,  46 

Louisiana  v.  Mayor,  etc.,  of  New  Orleans 49,  50,  68-71,  206 

Louisville,  New  Orleans  and  Texas  R.  Co.  v.  Miss.  ..90-92,  126,  132 

Macon  Grocery  Co.  v.  Atlantic  Coast  Line  R.  Co 159-161 

,^axwell  V.  Dow  174-176 

'  Montague  and  Co.  v.  Lowry 97  (note) 

Murray  v.  Land  and  Improvement  Co 61 

New  England  R.  Co.  v.  Conroy 190-191 

Northern  Securities  Co.  v.  United  States  97-99 

Norwood  V.  Baker  79-80 

O'Neil  V.  Vermont 87   (note),  173-174 

Osborn  v.  United  States  21,  23,  34 

Parke,  Davis  and  Co.  v.  Roberts 148-150 

Parkersburg  and  Ohio  River  Transportation  Co.  v.  Park- 

ersburg    100-103 

Patriot,  the  89  (note) 

Patterson  v.  Colorado,  ex  rel.  Att'y  Gen 176 

Paul  V.  Virginia 143 

Pirie  v.   Tvedt    157-158 

t-^Plessy  V.  Ferguson   126,  132-134 

Pollock  V.  Farmers'  Loan  and  Trust  Co 177-180,  196-197 

Rahrer,  in  re 86-87 

Railroad  Co.  v.  Ide 156 

Regina  v.  Lords  Com.  of  the  Treas 19 

Rhodes  v.  Iowa  83,  87-89 

Robbin  v.  Shelby  County  Taxing  District 105 

Robertson  v.  Baldwin 114,  117-119,  I97 

Schick  V.  United  States  65-68 

Schillinger  v.  United  States  53-54 

^Slaughter  House  Cases  I74 

Smith  V.  St.  Louis  and  Southwestern  R.  Co 120-121 

Standard  Oil  Co.  v.  United  States 99,  193,  199,  200-202,  205-206 

St.  Louis  and  San  Francisco  R.  Co.  v.  James 158-159 

Stone  V.  Farmers'  Loan  and  Trust  Co 50-52 

Stoutenburgh  v.  Hennick  105 

Taylor  v.  Beckham  Ii,  61,  74-78 

Texas  and  Pacific  R.  Co.  v.  Interstate  Commerce  Com 122-123 

Thompson  v.  Allen  County 166-168 

Thompson  v.  Utah 65  (note) 

Tindal  v.  Wesley 32,  z'^ 

Tonawanda  v.  Lyon  82  (note) 

Tullock  v.  Mulvane 161-164 

Trono  v.  United  States 188 


TABLE   OF   CASES 

^Twining  v.  New  Jersey 176,  184-185 

United  States  v.  American  Tobacco  Co 99»  I93>  I99 

United  States  v.  Clark 193-196,  205 

United  States  v.  E.  C.  Knight  Co 92-97,  I99 

United  States  v.  Great  Falls  M'f'g.  Co 54 

United  States  v.  Jung  Ah  Ling 137,  139-141 

United  States  v.  Lee 24,  36,  38,  41 

United  States  v.  Trans-Missouri  Freight  Assoc 97  (note) 

Walsh  V.  Preston  52   (note) 

Western  Union  Telegraph  Co.  v.  Kansas 151-152 

Wight  V.  Davidson  82  (note) 

Wilson  V.  Blackbird  Creek  Marsh  Co 86 

Wilson  V.  North  Carolina yy 

Younsr,  ex  parte 17,  25-31,  36 


THE  CONSTITUTIONAL  DOCTRINES  OF 
JUSTICE  HARLAN 


INTRODUCTION 

John  Marshall  Harlan  was  born  on  June  i,  1833,  in  Boyle 
County,  Kentucky.  His  father,  the  Honorable  James  Har- 
lan, was  an  active  lawyer  of  that  State,  and  christened  his 
son  for  the  judgeship,  giving  him  the  name  John  Marshall 
in  honor  of  that  highly  respected  formulator  of  the  prin- 
ciples of  our  constitutional  law.  The  subject  of  our  study 
grew  up  at  a  time  when  the  air  was  hot  with  abolition  sen- 
timent, and  in  a  State  where  opinion  was  sharply  divided. 
Though  his  father  was  not  an  abolitionist,  he  was  an  eman- 
cipator, and  some  time  before  the  war  he  set  his  slaves  free. 
The  young  Harlan  imbibed  this  spirit  of  emancipation,  and 
when  the  test  came  he  espoused  the  cause  of  freedom.  He 
and  his  father  fought  valiantly  to  turn  the  tide  of  opinion 
in  Kentucky  against  secession,  and  were  influential  in 
preventing  that  State  from  joining  the  Confederacy.  When 
Kentucky  refused  to  furnish  its  quota  of  soldiers  to  the 
Union,  Harlan  was  one  of  those  who  volunteered  to 
fight  on  the  northern  side.  He  organized  a  regiment  of 
militia,  and  led  them  in  battle  against  the  South.  He  was 
thus,  to  start  with,  colonel  of  the  Tenth  Kentucky  Infantry, 
but  he  rose  rapidly  in  rank,  and  in  1863  was  acting-com- 
mander of  a  brigade.  At  this  time,  however,  the  death  of 
his  father  made  it  necessary,  for  family  reasons,  that  he  re- 
turn to  civil  life.  At  the  time  of  his  resignation  from  the 
army  his  name  had  just  been  sent  by  Mr.  Lincoln  to  the 
Senate  as  a  full  brigadier-general,  but  his  services  in  the 
army  were  ended.  He  remained  loyal  to  the  northern 
cause  throughout  his  career,  and  many  times  asserted  his 
disapproval   of   the   deprivation  of  the   rights   which  the 


lO        CONSTITUTIONAL  DOCTRINES   OF  JUSTICE   HARLAN 

negroes  were  supposed  to  have  obtained  by  the  new  amend- 
ments to  the  Constitution  of  the  United  States. 

Mr.  Harlan  received  his  education  at  Centre  College,  Ken- 
tucky, where  he  received  the  degree  of  A.B.  in  1850,  and  at 
Transylvania  University,  where  he  studied  law.  The  degree 
of  LL.D.  was  conferred  on  him  by  the  following  institutions : 
Bowdoin  in  1883,  Centre  College  and  Princeton  in  1884, 
and  the  University  of  Pennsylvania  in  1900.  From  1889  to 
his  death  in  191 1  he  was  professor  of  constitutional  law  at 
the  George  Washington  University,  in  Washington,  D.  C. 

He  married  Miss  Malvina  F.  Shanklin,  of  Evansville,  In- 
diana, December  23,  1856,  and  had  a  long  and  happy  mar- 
ried life.  His  three  sons,  Dr.  Richard  Davenport  Harlan, 
the  Honorable  James  S.  Harlan,  and  Mr.  John  Maynard 
Harlan,  occupy  prominent  positions  in  the  service  of  the 
nation.  The  oldest,  Dr.  Richard  Davenport  Harlan,  holds 
a  high  position  as  an  educator,  the  second  is  a  member  oi 
the  Interstate  Commerce  Commission,  and  the  youngest  is 
an  attorney-at-law  in  Chicago. 

Before  and  during  his  service  as  associate  justice  of  the 
Supreme  Court,  Mr.  Harlan  held  responsible  appointments 
outside  of  his  regular  service  as  judge.  He  was  twice  can- 
didate for  the  governorship  of  Kentucky,  and  was  attorney- 
general  of  that  State  from  1863  to  1867.  His  entrance  into 
national  affairs  was  marked  by  the  part  which  he  took  in 
the  Cincinnati  Republican  Convention  of  1876,  which  nom- 
inated Mr.  Hayes  as  Republican  candidate  for  the  presi- 
dency. In  this  convention  he  was  leader  of  the  forces  for 
the  nomination  of  General  B.  H.  Bristow,  a  member  of 
Grant's  Cabinet ;  but  when  Bristow's  nomination  became  im- 
possible, his  supporters  united  with  others  for  the  nomina- 
tion of  Mr.  Hayes.  When  Hayes  was  elected  to  the  presi- 
dency, he  wished  to  appoint  a  representative  lawyer  from 
Kentucky  as  one  of  his  Cabinet  and  offered  the  attorney- 
generalship  to  Mr.  Harlan,  who,  however,  did  not  see  his 
way  clear  to  accept. 

Mr.  Harlan's  appointment  by  President  Hayes  upon  the 


INTRODUCTION  J  J 

so-called  Louisiana  Commission  was  a  notable  incident  in 
his  career.  The  purpose  of  the  commission  was  to  aid  in 
the  settlement  of  an  election  dispute  in  Louisiana.  This 
commission  must  of  course  be  distinguished  from  the  state 
Returning  Board  which  had  been  appointed  at  an  earlier 
date  to  examine  election  returns  in  that  State.  The  Return- 
ing Board  had  given  the  state  vote  to  Hayes  in  the  national 
election,  and  had  likewise  turned  the  governorship  of  the 
State  over  to  the  Republican  candidate.  The  Republicans 
wished  to  get  the  support  of  the  national  army  to  secure 
them  in  power,  and  appealed  to  Hayes  to  this  end.  To  clear 
up  the  situation  the  Louisiana  Commission  was  appointed. 
The  members  of  the  commission,  being  appointed  by  the 
President  and  reporting  only  to  him,  had  no  powers,  but 
were  to  hear  the  complaints  of  both  sides  and  to  serve  as  a 
safety  valve  to  the  pent-up  grievances.  They  soon  found  that 
the  return  of  the  federal  army  to  the  State  was  unwise. 
Owing  to  the  fact  that  the  property  owners  voluntarily  sent 
in  their  taxes  to  the  Democratic  organization,  its  oppo- 
nents soon  disbanded  for  lack  of  funds,  and  the  situation 
settled  itself.  The  commission  was  doubtless  influential  in 
helping  to  undo  some  of  the  crooked  work  of  the  Returning 
Board.  It  was  an  honor  to  have  been  upon  a  board,  the 
majority  of  whose  members  were  Republicans,  which  was 
honest  enough  to  recommend  that  the  Democratic  govern- 
ment be  upheld  at  a  time  when  one  would  not  have  expected 
such  a  recommendation.  Mr.  Harlan's  sense  of  honor 
must  have  helped  greatly  in  maintaining  the  integrity  of  the 
commission. 

Mr.  Harlan  also  served  as  one  of  the  American  arbi- 
trators on  the  Behring  Sea  Tribunal,  which  met  in  Paris 
in  1893  to  settle  the  dispute  between  the  United  States  and 
England  over  the  Alaskan  seal  fisheries.  An  eyewitness 
said  of  his  appearance  on  this  occasion :  "  I  can  never  forget 
a  scene  I  once  witnessed  in  Paris,  when  the  Behring  Sea 
Arbitration  Tribunal  was  sitting  there,  with  John  Marshall 
Harlan  of  Kentucky,  at  one  end  of  the  court  and  John 


12        CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

Tyler  Morgan  of  Alabama  at  the  other.  Both  were  then  in 
the  Indian  Summer  of  their  manhood — Harlan  with  his 
noble  and  matchless  form,  the  God-gifted  Morgan,  with  his 
beautiful  face  and  head  that  sculptors  and  painters  might 
have  loved  to  copy.  My  heart  swelled  with  pride  as  I 
looked  upon  those  two  great  American  citizens,  who  had 
been  opposing  generals  in  the  Civil  War,  and  fancied  that  I 
saw  in  them  reproductions  of  Brutus  and  Cicero."^ 

Mr.  Harlan  was  simple  and  childlike  in  his  daily  conduct, 
fond  of  home,  and  of  his  home  people  and  relatives.  He 
was  deeply  religious  in  his  nature.  He  honored  the  Consti- 
tution of  the  United  States,  and  the  Bible  seemed  to  be  the 
only  thing  that  he  placed  above  it.  "  The  Constitution  and 
the  Bible  were  the  objects  of  his  constant  thought  and  con- 
sideration, and  if  the  latter  was  to  him  always  vox  Dei,  the 
former,  vox  populi,  was  no  less  so."^ 

He  deeply  loved  his  State  as  well  as  his  nation.  "  I  re- 
member when  the  case  of  Taylor  v.  Beckham  was  argued 
in  this  court.  At  that  time  intense  feeling  existed  in  Ken- 
tucky. It  was  indeed  a  period  that  tried  men's  souls  as  well 
as  appealed  to  the  sound  judgment  of  the  people  of  our 
State.  During  the  argument  the  sympathies  of  Justice 
Harlan  were  so  awakened  that  he  shed  tears."^ 


Mr.  Harlan  was  associate  justice  of  the  Supreme  Court 
of  the  United  States  for  nearly  thirty-four  years,  from 
December  lo,  1877,  ^^til  his  death  on  October  14,  191 1. 
Though  he  was  appointed  by  President  Hayes  immediately 
after  his  return  from  service  on  the  Louisiana  Commission, 
there  was  nothing  in  that  experience  that  would  speak  for 
political  reward.  Furthermore,  his  whole  career  shows  that 
he  would  not  have  accepted  an  appointment  merely  for  polit- 
ical reasons. 

His  term  of  service  was  exceeded  in  length  by  only  two 

1  Remarks  of  Mr.  Hannis  Taylor  in  Proceedings  of  the  Bar  and 
Officers  of  the  Supreme  Court  of  the  United  States  in  Memory  of 
John  Marshall  Harlan,  Dec.  16,  191 1.     P.  30. 

2  Remarks  of  Attorney-General  Wickersham,  in  ibid.,  p.  45. 

3  Remarks  of  William  Bradley,  in  ibid.,  p.  27. 


INTRODUCTION  1 3 

justices, — Marshall  and  Field,  in  each  case  by  less  than  a 
year.  His  labors  were  not  surpassed,  however,  by  these 
men  of  longer  service.  Something  more  than  seven  hundred 
decisions  wherein  he  spoke  for  the  majority  bear  his  name, 
and  his  dissenting  and  concurring  opinions  pass  the  hundred 
mark. 

While  a  justice  he  was  more  than  a  judge.  His  interest 
went  further  than  a  contemplation  of  the  arguments  bear- 
ing on  the  cases,  and  he  thought  deeply  outside  of  questions 
of  constitutional  importance,  although  he  was  reluctant  to 
express  his  opinion  upon  great  issues  likely  to  be  brought  be- 
fore the  court.  In  a  letter  to  a  young  friend,  written  August 
12,  191 1,  only  two  months  before  he  died,  he  made  the  fol- 
lowing comments  in  reference  to  the  conditions  under  which 
new  States  should  be  admitted  into  the  Union:  "I  hope 
that  the  President  will  put  his  feet  down  firmly  upon  the 
recall  of  judges  in  Arizona  and  New  Mexico,  while  in  ter- 
ritorial condition.  It  is  one  thing  for  these  people,  after 
becoming  States,  to  amend  their  constitutions,  and  provide 
for  the  recall  of  judges.  It  is  quite  a  different  thing  for  Con- 
gress to  give  its  sanction  to  the  principle  of  the  *  recall '  by 
admitting  these  Territories  into  the  Union  with  constitutions 
providing  for  the  recall  of  judges.  No  people,  it  seems  to 
me,  are  fit  to  come  into  the  Union  as  States  who  are  willing 
to  put  the  *  recall'  of  judges  into  their  fundamental  law. 
Whether  a  particular  Territory  shall  be  admitted  into  the 
Union  as  a  State  is  a  matter  of  discretion  with  Congress. 
That  discretion  should  be  exercised  so  as  to  maintain  sound 
principles  that  are  recognized  as  such  by  Anglo-Saxon  people. 
Upon  the  question  whether  the  '  recall '  of  judges  is  repub- 
lican in  the  constitutional  sense,  I  express  no  opinion;  for 
that  question  may  come  up  for  judicial  determination.  I 
only  speak  for  the  *  recall'  as  a  matter  of  pubHc  policy."* 

This  is  in  itself  an  interesting  doctrine.  All  recognize 
certain  things  that  a  State  may  do  which  are  not  unconsti- 
tutional but  which  may  not  meet  the  approval  of  the  other 
States.     Though  a  State  may  do  these  things  after  it  is  ad- 

*  Remarks  of  Blackburn  Esterling,  in  ibid.,  p.  36. 
2 


14       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

mitted  into  the  Union,  it  would  not  be  wise  for  Congress  to 
put  itself  on  record  as  approving  them  by  admitting  new 
States  with  such  provisions  in  their  constitutions.  It  would 
be  far  better  for  the  State  to  break  its  promise,  so  far  as 
the  nation  is  concerned,  after  it  had  been  admitted  into  the 
Union,  than  it  would  be  for  Congress  to  sanction  the  ob- 
noxious provisions. 

As  a  hearer  of  arguments  Justice  Harlan  was  more  than 
a  scrutinizer  of  points  made  by  lawyers;  he  sometimes 
sought  to  train  the  lawyer  who  argued  before  the  court. 
The  following  story  with  regard  to  this  trait  is  told  by  a 
lawyer :  "  Something  like  two  years  ago  I  was  called  here  to 
argue  a  case  in  which  a  sovereign  State  was  the  complainant, 
and  my  associate  was  a  talented  young  lawyer  who  was 
letter  perfect  in  that  case,  but  who  had  never  before  ap- 
peared in  this  court.  The  matter  was  to  be  presented  on  a 
motion  for  which  under  the  rules  as  they  stood,  an  hour  was 
allowed  on  each  side,  and  I  suggested  that  my  associate 
should  open  case,  intending  that  if  he  presented  it  satis- 
factorily I  would  leave  him  to  occupy  the  entire  time  al- 
loted  to  us ;  but  he  was  so  full  of  his  case  that  he  began  the 
presentation  of  it  in  a  way  that  would  have  required  hours. 
I  was  growing  a  little  nervous  over  the  situation  myself,  but 
I  hesitated  to  interrupt  him,  because  I  thought  it  might  con- 
fuse him,  and  just  as  I  was  debating  with  myself  what  it 
was  best  to  do.  Judge  Harlan  called  on  him  in  a  stern  voice 
to  *  come  to  your  point.'  My  young  friend,  confused  beyond 
description,  managed  to  say  that  he  was  coming  to  it;  but 
Judge  Harlan  replied  that  his  time  would  be  consumed  be- 
fore he  reached  it,  and  that  in  the  meantime  the  court  would 
have  no  idea  of  the  question  he  was  presenting  to  it.  It 
was  a  trying  experience  for  a  new  member  of  the  bar,  and 
I  felt  it  so  keenly  that  I  shared  the  young  man's  resentment. 
A  few  days  afterwards  I  happened  to  meet  Judge  Harlan 
as  he  was  coming  to  the  Capitol,  and  told  him  bluntly  that  I 
regarded  his  rebuke  of  that  young  man  as  a  little  less  than 
cruel.  Instead  of  exhibiting  an  irritation,  which  would  have 
been  entirely  permissible  against  a  member  of  his  bar  who 


INTRODUCTION  1 5 

had  presumed  to  criticise  his  conduct,  he  turned  to  me,  and, 
smiling  said :  '  My  dear  Senator,  you  do  not  understand  my 
purpose.  I  saw  that  the  young  man  was  embarrassed  by  his 
surroundings,  and  I  desired  to  reheve  him  from  embarrass- 
ment/ I  told  him  that  I  thought  he  had  chosen  a  curious 
way  of  producing  such  a  result,  and  he  advised  me  to  watch 
that  young  man  when  he  next  appeared  in  this  court.  It  so 
happened  that  a  reargument  of  that  very  case  was  ordered, 
and  when  my  associate  and  myself  appeared  here  to  argue 
it  at  the  next  term,  I  found  Judge  Harlan's  remedy  for  a 
lawyer's  embarrassment  completely  justified."^ 

Few  adverse  criticisms  have  been  made  of  Mr.  Harlan 
as  a  judge.  He  was  a  militant  justice,  but  his  militancy  was 
on  the  side  of  law.  Even  with  the  many  dissents  rendered 
by  him  there  is  no  evidence  of  hard  feeHng  on  the  part  of 
his  associates.  He  did  not  bear  maHce  with  his  disagree- 
ment, but  he  was  often  very  vehement  in  his  dissents. 

His  opinions  and  dissents  often  contained  extraneous 
matter,  that  is,  reference  to  circumstances  which  had  no 
direct  bearing  upon  the  case.  But  these  are  easily  passed 
over  when  one  is  looking  for  his  argument.  The  presence 
of  these  digressions  is  more  an  evidence  of  his  general  in- 
terest in  the  public  than  it  is  of  his  lack  of  knowledge  of  the 
principles  of  legal  argumentation. 

Some  have  claimed  that  Justice  Harlan  emphasized  too 
greatly  the  letter  of  the  law.  Such  a  contention  is  based 
either  on  ignorance  or  on  prejudice.  One  illustration  will 
show  this  point.  No  one  who  so  interpreted  the  eleventh 
amendment  as  to  maintain  that  a  suit  against  the  officer  of 
a  State  in  his  official  capacity  was  not  a  suit  against  a  State 
could  have  held  to  the  strict  letter  of  the  law.  When,  by  a 
logical  and  grammatical  construction  a  law  could  be  made 
to  correct  the  evils  intended  to  be  remedied  by  it,  he  argued 
that  this  should  be  done.  But  if  such  an  application  meant 
an  absolute  change  in  the  law,  he  held  that  this  change 
should  be  left  to  the  legislative  power.  The  criticism  that 
he  stressed  too  emphatically  the  letter  of  the  law  arises  from 
the  fact  that  he  did  not  believe  in  equivocation. 

5  Remarks  of  Joseph  W.  Bailey,  in  ibid.,  pp.  21-22. 


CHAPTER  I 

Suability  of  States 

The  suability  or  non-suability  of  a  State  has  been  before 
the  Supreme  Court  of  the  United  States  in  numerous  in- 
stances. It  has  arisen  under  various  circumstances,  and  the 
court  has  given  on  this  question  many  opinions  which  it  is 
difficult  to  reconcile.  It  is  a  complicated  question,  and  no 
attempt  will  be  made  to  give  an  exposition  of  the  whole 
matter.  Interest  centers  around  Justice  Harlan  and  the 
views  which  he  has  held  on  the  subject.  He  had  a  very 
decided  opinion  on  this  point,  and  he  almost  never  failed 
to  assert  himself  whenever  the  matter  was  before  the  court. 

Article  i,  section  lo  of  the  constitution  of  the  United 
States  places  the  following  prohibition  upon  the  States: 
"  No  State  shall  .  .  .  pass  any  .  .  .  law  impairing  the  obli- 
gation of  contracts  " ;  and  the  fourteenth  amendment  pro- 
vides that  "  no  State  shall  .  .  .  deprive  any  person  of  Hfe, 
liberty  or  property,  without  due  process  of  law."  But  the 
eleventh  amendment  expressly  stipulates  that  the  courts  of 
the  United  States  may  not  entertain  a  suit  against  a  State. 
Suppose,  therefore,  a  State  takes  property  without  due 
process  of  law  for  its  own  use  or  passes  a  law  impairing  the 
obligation  of  its  own  contracts,  what  action  can  the  individ- 
ual take  in  order  to  receive  the  benefit  of  these  stipulations? 
Such  a  question,  of  course,  opens  up  the  whole  problem  as 
to  what  is  to  be  termed  a  suit  against  a  State,  for  if  the  law 
takes  property  without  due  process  of  law  or  impairs  the 
obligation  of  contracts,  the  law  is  unconstitutional  even 
though  the  State  itself  be  a  party  to  the  proceedings.  At 
the  same  time,  if  the  action  to  prevent  the  enforcement  of 
the  law  amounts  to  a  suit  against  the  State,  it  cannot  be 
maintained.     Therefore,  the  problem  is  almost  that  of  an 

i6 


SUABILITY   OF   STATES  1/ 

irresistible  force  meeting  an  immovable  body.  Shall  the 
immunity  from  compulsory  judicial  process  be  upheld,  or 
shall  the  prohibitions  relative  to  contracts  and  due  process 
of  law  be  enforced?  In  many  cases  one  or  the  other  but 
not  both  of  these  ends  can  be  realized.  It  is  clear  that  here 
there  is  abundant  opportunity  for  difference  of  opinion 
according  to  which  one  of  these  constitutional  mandates  is 
maximized  and  which  one  minimized.  As  will  be  found, 
the  court  has  sought  to  maintain  a  middle  course,  and  in  so 
doing  has  not  always  been  consistent  in  the  doctrines  which 
it  has  declared. 

Discussion  of  Cases. — Justice  Harlan's  views  with  refer- 
ence to  this  subject  appear  especially  in  the  dissents  which 
he  rendered  in  Louisiana  v.  Jumel,  107  U.  S.  711,  and  Ex 
parte  Young,  209  U.  S.  123.  The  first,  Louisiana  v.  Jumel, 
decided  that  a  certain  action  against  the  treasurer  of  the 
State  of  Louisiana  was  a  suit  against  the  State  and  hence 
could  not  be  entertained ;  while  the  other.  Ex  parte  Young, 
decided  that  a  certain  action  against  the  attorney-general  of 
Minnesota  did  not  constitute  a  suit  against  a  State  and 
hence  could  be  entertained  by  the  court.  In  neither  of  these 
cases  was  the  action  on  account  of  any  private  act  of  the 
person  concerned,  but  because  of  the  official  acts  of  each. 
The  fact  that  the  latter  decision  allowed  the  suit  and  the 
former  did  not  makes  the  cases  typical;  and  the  fact  that 
Justice  Harlan  dissented  from  each  affords  an  opportunity 
to  deduce  from  them  his  exact  opinion  on  this  subject. 

The  case  of  Louisiana  v.  Jumel  was  decided  in  1882.  The 
facts  in  the  case  were  briefly  these:  The  legislature  of 
Louisiana  provided  in  1874  for  an  issue  of  bonds,  for  the 
purpose  of  consolidating  and  reducing  the  floating  and 
bonded  debt.  The  bonds  were  to  be  payable  to  the  bearer 
forty  years  from  January  i,  1874,  and  to  bear  interest  at 
the  rate  of  seven  per  cent,  payable  the  first  of  January  of 
each  year.  The  bonds  were  to  be  signed  by  the  governor, 
the  auditor,  and  the  secretary  of  state,  and  the  coupons  by 
the  auditor  and  the  treasurer.    The  State  levied  a  tax  for 


1 8        CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

the  purpose  of  meeting  the  above  obUgations,  and  immedi- 
ately thereafter  passed  an  amendment  to  the  constitution 
making  the  bonds  create  a  vaHd  contract  between  the  State 
and  every  holder  of  such  bonds,  v^hich  the  State  could  in  no 
wise  impair.  Certain  persons  held  bonds  to  the  amount  of 
$20,000  and  unpaid  coupons,  due  January  i,  1880,  to  the 
amount  of  $79,900. 

On  the  first  day  of  January,  1880,  a  new  constitution  of 
Louisiana  went  into  effect.  A  portion  of  that  constitution 
aimed  to  alter  the  former  provisions  of  1874.  It  reduced 
the  interest  to  be  paid  on  the  consolidated  bonds  from 
seven  per  cent  to  two,  and  further  stipulated  that  coupons 
of  said  consolidated  bonds  falling  due  on  the  first  day  of 
January,  1880,  should  be  remitted,  and  that  the  proceeds  of 
the  taxes  which  had  been  collected  for  the  purpose  of  meet- 
ing these  obligations,  of  which  there  were  $300,000  in  the 
treasury,  should  go  to  defray  other  expenses  of  the  State. 

Holders  who  presented  their  bonds  for  payment  were  re- 
fused because  of  this  action  of  the  State,  whereupon  they 
contended  that  this  action  of  the  State  impaired  the  obliga- 
tion of  contracts.  They  therefore  brought  suit  against  the 
treasurer  of  the  State  to  compel  him  to  make  payment  ac- 
cording to  the  previous  legislation  of  the  State.  The  state 
treasurer  entered  the  plea  that  such  a  suit  was  a  suit  against 
the  State  and  as  such  was  forbidden  by  the  eleventh  amend- 
ment to  the  Constitution  of  the  United  States.  The  circuit 
court  of  the  United  States  pronounced  this  a  valid  plea,  and 
upon  appeal  to  the  Supreme  Court  this  decision  was  sus- 
tained. 

The  grounds  for  this  decision  were  these :  It  was  evident 
that  the  State  designed  to  make  promises  and  pledges  in 
such  a  manner  that  they  would  be  protected  by  the  Constitu- 
tion of  the  United  States;  and  that  the  State,  in  adopting 
the  debt  ordinance  of  1879,  designed  to  stop  further  levy  of 
the  promised  tax  and  to  prevent  the  disbursing  officer  from 
using  the  revenue  from  previous  levies  to  pay  the  interest 
falling  due  January  i,  1880,  as  well  as  the  principal  and 


SUABILITY   OF   STATES  1 9 

interest  maturing  thereafter.  If  the  State  could  be  sued, 
there  was  little  doubt  that  this  later  state  action  would  be 
pronounced  an  impairment  of  the  obligation  of  the  State's 
contract.  The  question  was  whether  the  contract  could  be 
enforced,  notwithstanding  the  provision  in  the  new  state 
constitution,  by  coercing  the  agents  and  officers  of  the  State, 
whose  authority  to  act  had  been  withdrawn,  without  the 
State  itself  being  made  a  party  to  the  proceedings.  By  the 
original  statute  these  officers  were  directed  to  use  the  money 
in  the  treasury  in  one  way;  by  the  new  constitution  they 
were  directed  to  use  it  in  another  way;  by  the  statute  they 
had  to  raise  more  money  by  taxation,  but  by  the  constitu- 
tion it  was  ordered  that  this  should  not  be  done.  The  offi- 
cers owed  their  duty  to  the  State,  and  had  no  contract 
relations  with  the  bondholders.  They  could  be  moved 
through  the  State,  but  not  the  State  through  them.  In 
short,  then,  the  officers  had  always  to  obey  the  will  of  the 
State,  and  if  this  will  changed  the  action  of  the  officers 
had  to  change  accordingly. 

The  first  precedent  cited  by  the  Supreme  Court  was  Reg. 
V.  Lords  Com.  of  the  Treas.,  Law  Rep.  7  Q.  B.  387,  in  which 
the  court  of  Queen's  Bench  of  England  refused  to  take  cog- 
nizance of  a  case  when  an  amount  of  money  had  been  raised 
for  a  specific  purpose  and  appropriated  by  Parliament  for 
another  purpose.  In  this  case  it  was  held  that  a  suit  en- 
tered against  the  Lords  Commissioners  of  the  Treasury  was 
a  suit  against  the  sovereign  and  not  valid.  The  Supreme 
Court  of  the  United  States  claimed  a  similarity  between  the 
two  cases  in  that  the  former  was  a  suit  against  the  com- 
missioners of  the  treasury  of  England,  and  the  latter  was 
against  the  state  treasurer  of  Louisiana. 

As  to  this  point,  Justice  Harlan  in  his  dissent  said :  "  It 
seems  to  me  that  case  furnishes  no  support  for  the  sugges- 
tion that  these  are  suits  against  the  State,  simply  because 
they  are  brought  against  its  officers.  It  does  not  conflict 
with  the  proposition  that  the  state  Treasurer  can  be  com- 
pelled to  apply  the  proceeds  of  these  taxes  as  stipulated  in 


20        CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

the  Statute  and  Constitution  of  1874,  which  were  his  sole 
authority  to  receive  them.  Here  is  a  statutable  obHgation 
upon  him  to  pay  the  coupons  as  they  matured.  And  to  that 
is  added  the  obligation  imposed  by  that  Constitution,  which, 
in  terms,  declares  that  the  proceeds  of  taxes  collected  under 
the  Act  of  that  year  '  Shall  be  paid  by  the  Treasurer  of  the 
State  to  the  holders  of  said  bonds,  as  the  principal  and  in- 
terest of  the  same  shall  fall  due,'  without  further  legislative 
authority.  These  obligations  remain  upon  that  officer,  un- 
less it  be  that  the  Debt  Ordinance,  although  unconstitu- 
tional and  void,  has  discharged  them.  Had  Parliament, 
instead  of  the  Act  involved  in  the  case  cited,  passed  one 
directly  imposing  upon  the  defendants  the  duty  of  paying 
out  of  moneys  appropriated  for  that  purpose  a  certain  class 
of  claims,  it  is  manifest  that  the  court  of  Queen's  Bench 
would  have  compelled  them,  by  mandamus  or  other  proc- 
ess, to  perform  that  duty.  In  the  case  supposed,  there  would 
have  been  a  statutable  obligation  which  the  court  would  not 
have  permitted  the  defendants  to  evade  on  the  pretext  that 
they  were  officers  of  the  Crown."  Hereupon  Justice  Har- 
lan cites  a  case  in  which  this  very  condition  arose  and  in 
which  the  court  issued  such  a  mandamus,  and  shows  further 
that  the  fact  that  the  Constitution  of  the  United  States 
forbids  that  any  State  impair  the  obligation  of  contracts 
makes  more  powerful  the  statutory  force ;  and  further  that 
the  difference  in  the  nature  of  the  sovereign  in  England 
from  that  of  the  sovereign  here  shows  that  little  weight 
should  be  given  to  the  English  decision. 

In  short,  then.  Justice  Harlan's  reply  was  this :  The  Eng- 
lish court  did  not  entertain  the  suit  because  there  was  a 
statutable  obligation  upon  them  not  to  do  so;,  the  Ameri- 
can courts  should  have  entertained  the  suit  because  there 
was  a  statutable  obligation  upon  them  to  do  so, — a  statut- 
able obligation  not  altered  because  of  the  unconstitutional 
amendment  which  tried  to  relieve  Louisiana  of  its  duly 
contracted  debts. 

The  next  case  cited  by  the  court  for  precedent  is  Os- 


SUABILITY   OF  STATES  21 

born  V.  Bank  of  the  United  States,  9  Wheat.  738.  The 
argument  of  the  majority  opinion  is  that  there  was  a  great 
difference  between  this  case  and  the  Louisiana  case.  In  the 
Osborn  case  "the  object  was  to  prevent  money  which  had 
been  unlawfully  taken  out  of  the  bank  by  the  officers  of  the 
State  from  getting  into  the  Treasury.  .  .  .  Thus  the  money 
seized  was  kept  out  of  the  Treasury,  because  if  it  got  in,  it 
would  be  irretrievably  lost  to  the  bank,  since  the  State 
could  not  be  sued  to  recover  it  back.  No  one  pretended 
that  if  the  money  had  been  actually  paid  into  the  Treasury, 
and  had  become  mixed  with  the  other  money  there,  it  could 
have  been  got  back  from  the  State  by  a  suit  against  the 
officers.  They  would  have  been  individually  liable  for  the 
unlawful  seizure  and  conversion,  but  the  recovery  would 
be  against  them  individually  for  the  wrongs  they  had  per- 
sonally done,  and  could  have  no  effect  on  the  money  which 
was  held  by  the  State.  Certainly  no  one  would  ever  sup- 
pose that  by  a  proceeding  against  the  officers  alone,  they 
could  be  held  as  trustees  for  the  bank,  and  required  to  set 
apart  from  the  moneys  in  the  Treasury  an  amount  equal  to 
that  which  had  been  improperly  put  there,  and  hold  it  for 
the  discharge  of  the  liability  which  the  State  incurred  by 
reason  of  the  unlawful  exaction." 

Justice  Harlan  in  his  comment  on  this  reasoning  said: 
"  The  latter  was  a  suit  to  recover  moneys,  which  officers  of 
the  State  of  Ohio,  in  conformity  with  its  statutes,  had 
illegally  taken  from  a  bank  of  the  United  States.  The  suit 
being  against  the  officers  of  the  State,  the  objection  was 
taken  that  it  could  not  be  sustained  without  the  State  itself 
being  a  party;  that  the  State  could  not  be  sued;  conse- 
quently, it  was  argued,  the  relief  prayed  (the  restoration  of 
the  money)  could  not  be  granted.  But  to  that  objection  the 
court,  speaking  by  Chief  Justice  Marshall,  .  .  .  said:  'If 
the  State  of  Ohio  could  have  been  made  a  party  defendant, 
it  can  scarcely  be  denied  that  this  would  be  a  strong  case 
for  an  injunction.  The  objection  is  that,  as  the  real  party 
cannot  be  brought  before  the  court,  a  suit  cannot  be  sus- 


22        CONSTITUTIONAL   DOCTRINES   OF   JUSTICE    HARLAN 

tained  against  the  agents  of  that  party;  and  cases  have 
been  cited  to  show  that  a  court  of  chancery  will  not  make  a 
decree  unless  all  those  who  are  substantially  interested  be 
made  parties  to  the  suit.  This  is  certainly  true  where  it  is 
in  the  power  of  the  plaintiff  to  make  them  parties;  but  if 
the  person  who  is  the  real  principal,  the  person  who  is  the 
true  source  of  the  mischief,  by  whose  power  and  for  whose 
advantage  it  is  done,  be  himself  above  the  law,  be  exempt 
from  all  judicial  process,  it  would  be  subversive  of  the  best 
established  principles  to  say  that  the  laws  could  not  afford 
the  same  remedies  against  the  agent  employed  in  doing  the 
wrong,  which  they  would  afford  against  him  could  his 
principal  be  joined  in  the  suit.' " 

Justice  Harlan  noted  that  this  decision  had  never  been 
questioned  before :  "  It  seems  to  establish,  upon  grounds 
which  cannot  well  be  shaken,  that  a  suit  against  state  offi- 
cers, to  prevent  a  threatened  wrong  to  the  injury  of  the 
citizen,  is  not  necessarily  a  suit  against  the  State  within 
the  meaning  of  the  nth  Amendment  of  the  Constitution." 
Thus  it  appears  that  the  argument  on  the  part  of  the  court 
was  purely  technical — it  was  rather  in  words  than  in  mean- 
ing— and  was,  as  Justice  Harlan  makes  clear,  a  departure 
from  what  the  court  had  previously  maintained. 

Davis  V.  Gray,  i6  Wall.  203,  is  next  mentioned  by  the 
court  as  affording  grounds  for  its  decision :  In  a  land  grant 
the  receiver  of  a  railroad  "obtained  an  injunction  against 
the  Governor  and  Commissioner  of  the  Land-Office  of 
Texas  to  restrain  them  from  incumbering,  by  patents  to 
others,  lands  which  had  been  contracted  to  the  railroad 
company.  .  .  .  The  specific  tracts  of  land  in  dispute  were, 
by  the  contract  which  had  been  made,  segregated  from  the 
public  domain  and  set  apart  for  the  company.  The  case 
rests  on  the  same  principle  it  would  if  patents  had  been 
actually  issued  to  the  company,  and  the  State,  through  its 
officers,  was  attempting  to  place  a  cloud  on  the  title  by 
granting  subsequent  patents  to  others." 

Justice  Harlan  recognized  that  a  full  statement  of  the 


SUABILITY   OF   STATES  23 

point  at  issue  is  sufficient  to  make  the  citation  argue  against 
the  conclusion  of  the  court.  He  says:  "In  that  case  it 
appears  that  the  State  of  Texas  made  a  grant  of  lands  to  a 
railroad  company,  upon  the  basis  of  which  bonds  were 
issued  known  as  land-grant  mortgage  bonds.  They  were 
sold  in  large  numbers  in  this  country  and  Europe.  Sub- 
sequently the  State,  by  provisions  of  its  statutes  and  Con- 
stitution, attempted  to  repudiate  and  nullify  its  contract; 
and,  in  pursuance  thereof,  its  officers  proposed  to  issue 
patents  to  others  for  a  part  of  the  lands  embraced  in  this 
grant.  Thereupon  a  suit  in  equity  was  instituted  in  the 
Circuit  Court  of  the  United  States  against  the  Governor 
and  the  Commissioner  of  the  General  Land-Office  of  Texas, 
to  prevent  them  from  issuing  patents  for  the  lands  or  any 
part  of  them.  The  State  was,  of  course,  not  made  a  party 
on  the  record.  The  bill  was  demurred  to  upon  the  ground 
that  she  could  not  be  sued,  and  that  the  suit,  being  against 
her  officers,  was  one,  within  the  meaning  of  the  Constitu- 
tion, against  her.  The  demurrer  was  overruled,  and  the 
relief  asked  was  given." 

He  further  explained  that  Justice  Swayne,  in  rendering 
this  decision,  stated  the  following  principles  as  having  been 
announced  in  Osborn  v.  Bank  of  the  United  States:  "  i.  A 
Circuit  Court  of  the  United  States,  in  a  proper  case  in 
equity,  may  enjoin  a  state  officer  from  executing  a  state  law 
in  conflict  with  the  Constitution,  or  a  statute  of  the  United 
States,  when  such  execution  will  violate  the  rights  of  the 
complainant.  2.  Where  the  State  is  concerned,  the  State 
should  be  made  a  party,  if  it  can  be  done.  That  it  can- 
not be  done,  is  a  sufficient  reason  for  the  omission  to  do 
it,  and  the  court  may  proceed  to  decree  against  the  officers 
of  the  State  in  all  respects  as  if  the  State  were  a  party 
to  the  record.  3.  In  deciding  who  are  parties  to  the  suit, 
the  court  will  not  look  beyond  the  record.  Making  a  state 
officer  a  party  does  not  make  the  State  a  party,  although 
her  laws  prompt  his  action  and  the  State  stands  behind 
him  as  the  real  party  in  interest.  ...  It  was  in  conformity 
with  those  doctrines  that  the  relief  asked  was  given." 


24       CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

Two  Other  cases  were  referred  to  in  the  argument  for 
the  court,  namely,  Board  of  Liquidation  v.  McComb,  92  U. 
S.  531,  which  arose  under  the  same  act  as  the  case  now 
under  consideration,  and  United  States  v.  Lee,  106  U.  S. 
196.  It  is  hardly  necessary  to  discuss  these  cases  further, 
for  the  same  sort  of  distinction  was  made  by  the  court, 
and  equally  conclusive  replies  were  made  by  Justice  Harlan. 
Both  were  suits  entertained  against  officers,  the  former 
against  an  officer  of  Louisiana,  and  the  latter  against  offi- 
cers of  the  United  States.  In  both  the  officers  were  sued 
in  their  official  capacity  and  the  decisions  were  rendered 
against  them. 

In  closing  his  dissent,  Justice  Harlan  said :  "  My  own 
conclusions  are:  That  the  officers  of  Louisiana  cannot 
rightfully  execute  provisions  of  its  constitution  which  con- 
flict with  the  supreme  law  of  the  land,  and  the  courts  of 
the  Union  should  not  permit  them  to  do  so ; 

"  That  but  for  the  adoption  of  the  unconstitutional  Debt 
Ordinance  of  1879,  and  whether  the  suits  were  in  a  state 
court  or  in  the  Circuit  Court  of  the  United  States,  these 
state  officers  would  have  been  restrained  by  injunction 
from  diverting  the  funds  collected  to  meet  the  interest  on 
the  consolidated  bonds,  and  would  have  been  compelled,  by 
mandamus,  to  perform  the  purely  ministerial  duties  en- 
joined by  the  Statute  and  Constitution  of  1874;, 

"That  if,  by  existing  laws,  the  Circuit  Court  of  the 
United  States  has  no  power  to  issue  such  writs,  still,  upon 
the  removal  of  the  mandamus  suit  from  the  state  court, 
the  former  had  power  to  do  what  the  state  court  could 
legally  have  done  had  there  been  no  removal;  vis.:  make 
peremptory  the  alternative  mandamus  granted  at  the  begin- 
ning of  the  suit  by  the  inferior  state  court; 

"  That  the  Debt  Ordinance  being  void  because  in  con- 
flict with  the  Constitution  of  the  United  States,  furnishes 
no  reason  whatever,  least  of  all  in  the  courts  of  the  Union, 
why  the  relief  asked  should  not  be  granted  by  any  court  of 
proper  jurisdiction  as  to  parties ; 


SUABILITY   OF  STATES  2$ 

"That  to  refuse  relief  because  of  the  command  of  a 
State  to  its  officer  to  do  that  which  is  forbidden,  and  refrain 
from  doing  that  which  is  enjoined,  by  the  supreme  law  of 
the  land;  or  to  give  effect,  for  any  purpose,  in  the  courts 
of  the  Union,  to  the  orders  of  the  supreme  political  power 
of  a  State,  made  in  defiance  of  the  Constitution  of  the 
United  States,  is,  practically,  to  announce  that,  so  far  as 
judicial  action  is  concerned,  a  State  may,  by  nullifying  pro- 
visions in  its  fundamental  law,  destroy  rights  of  contract, 
the  obhgation  of  which  the  Constitution  declares  shall  not 
be  impaired  by  any  state  law.  To  such  a  doctrine,  I  can 
never  give  my  assent." 

In  Ex  parte  Young,  209  U.  S.  123,  there  appears  to  be 
the  same  sort  of  contention  as  that  which  arose  in  Louisiana 
V.  Jumel.  In  this  case,  however,  the  court  decided  that  an 
injunction  against  the  attorney-general  of  the  State  of  Min- 
nesota issued  by  the  circuit  court  of  the  United  States  to 
prevent  his  putting  into  effect  certain  laws  would  hold,  in 
spite  of  the  plea  that  such  an  action  was  against  the  State 
of  Minnesota. 

The  case  arose  after  a  number  of  decisions  along  the 
same  line  as  Louisiana  v.  Jumel,  in  all  of  which  Justice 
Harlan  consistently  asserted  the  doctrine  which  he  had  just 
announced.  A  statement  at  the  beginning  of  his  dissent  in 
the  Young  case  might  seem  to  indicate  that  he  had  given 
up  the  theory  which  he  had  so  tenaciously  held,  but  as  his 
argument  is  examined  more  deeply  this  is  found  not  to  be 
true.  His  doctrine  is  essentially  the  same,  and  this  case  had 
made  him  alter  only  slightly  one  phase  of  it.  This  point 
will  be  explained  later.  The  words  are  as  follows :  "  Al- 
though the  history  of  this  litigation  is  set  forth  in  the 
opinion  of  the  court,  I  deem  it  appropriate  to  restate  the 
principal  facts  of  the  case  in  direct  connection  with  my 
examination  of  the  question  upon  which  the  decision  turns. 
.  .  .  That  examination,  I  may  say  at  the  outset,  is  entered 
upon  with  no  little  embarrassment,  in  view  of  the  fact  that 
the  views  expressed  by  me  are  not  shared  by  my  brethren. 


26        CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

I  may  also  frankly  admit  embarrassment  arising  from  cer- 
tain views  stated  in  dissenting  opinions  heretofore  deliv- 
ered by  me  which  did  not,  at  the  time,  meet  the  approval  of 
my  brethren,  and  which  I  do  not  now  myself  entertain. 
What  I  shall  say  in  this  opinion  will  be  in  substantial  accord 
with  what  the  court  has  heretofore  decided,  while  the  opin- 
ion of  the  court  departs,  as  I  think,  from  principles  pre- 
viously announced  by  it  upon  full  consideration.  I  propose 
to  adhere  to  former  decisions  of  the  court,  whatever  may 
have  been  once  my  opinion  as  to  certain  aspects  of  this 
general  question," 

When  his  arguments  are  examined  more  closely  it  is 
found  that  the  "  certain  views  stated  in  dissenting  opinions 
heretofore  delivered  by  me  .  .  .  which  I  do  not  now  my- 
self entertain"  refer  only  incidentally  to  his  general  doc- 
trine as  to  the  suability  of  a  State,  for,  as  will  be  seen,  his 
real  opinion  on  this  question  comes  out  more  clearly  in  this 
dissent  than  in  any  of  the  others. 

Upon  examination,  the  case  of  Ex  parte  Young  is  found 
to  be  a  very  difficult  one.  It  was  an  action  brought  in  the 
circuit  court  of  the  United  States  by  a  railroad  company  to 
prevent  the  State  of  Minnesota  from  enforcing  certain  laws 
which  the  company  claimed  were  confiscatory  and  hence  de- 
prived them  of  property  without  due  process  of  law.  The 
acts  were  so  stringent  in  their  nature  as  to  make  it  almost 
impossible  for  the  company  to  have  their  case  tried  in  any 
court  to  test  the  validity  thereof.  For  this  reason  the  com- 
plainants alleged  that  the  above-mentioned  orders  and  acts 
deprived  them  of  the  equal  protection  of  the  laws,  and  also 
deprived  them  of  their  property  without  due  process  of 
law,  and  hence  were  unconstitutional  and  void.  The  acts 
were  very  stringent  because  of  the  following  characteristics : 
In  the  first  place,  it  was  practically  impossible  to  have  their 
constitutionality  tested  because  of  the  severe  penalties  im- 
posed if  the  Supreme  Court  should  pronounce  them  con- 
stitutional. They  could  get  no  officer  or  employee  of  the 
railroad  company  to  take  the  risk.     In  the  second  place,  the 


SUABILITY   OF   STATES  2/ 

fines  for  breaking  the  laws  were  so  great  as  almost  to  put 
the  company  out  of  business  before  the  Supreme  Court 
could  pass  on  it.  About  the  only  recourse  that  the  railroad 
had  was  to  get  the  United  States  circuit  court  to  issue  an 
injunction  forbidding  the  state  attorney-general  to  put 
these  laws  into  operation.  This  was  done ;  and  the  Supreme 
Court  sustained  the  writ. 

With  the  issue  clearly  understood,  the  nature  of  the  ar- 
guments of  the  court  and  of  Justice  Harlan's  dissent  can 
be  examined.  The  question,  of  course,  for  the  court  to  de- 
cide was  whether  such  an  injunction  constituted  a  suit 
against  the  State  within  the  meaning  of  the  eleventh  amend- 
ment to  the  Constitution,  as  was  contended  by  the  attorney- 
general  of  the  State. 

Justice  Peckham,  speaking  for  the  court,  in  his  prelim- 
inary remarks  said :  "  We  have,  therefore,  upon  this  record, 
the  case  of  an  unconstitutional  act  of  the  state  legislature 
and  an  intention  by  the  attorney-general  of  the  state  to 
endeavor  to  enforce  its  provisions,  to  the  injury  of  the  com- 
pany, in  compelling  it,  at  great  expense,  to  defend  legal 
proceedings  of  a  complicated  and  unusual  character,  and 
involving  questions  of  vast  importance  to  all  employees  and 
officers  of  the  company,  as  well  as  to  the  company  itself. 
The  question  that  arises  is  whether  there  is  a  remedy  that 
the  parties  interested  may  resort  to,  by  going  into  a  Federal 
court  of  equity,  in  a  case  involving  a  violation  of  the  Fed- 
eral Constitution,  and  obtaining  a  judicial  investigation  of 
the  problem,  and,  pending  its  solution,  obtain  freedom  from 
suits,  civil  or  criminal,  by  a  temporary  injunction,  and,  if 
the  question  be  finally  decided  favorably  to  the  contention 
of  the  company,  a  permanent  injunction  restraining  all  such 
actions  or  proceedings."  Many  cases  are  cited  which  have 
involved  the  question  of  the  suabiHty  of  States,  but  the 
line  of  sequence  attempted  to  be  established  by  these  cita- 
tions is  difficult  to  follow. 

Justice  Harlan  said :  "If  a  suit  be  commenced  in  a  state 
court,  and  involves  a  right  secured  by  the  Federal  Constitu- 


28       CONSTITUTIONAL  DOCTRINES   OF  JUSTICE   HARLAN 

tion,  the  way  is  open  under  our  incomparable  judicial  sys- 
tem to  protect  that  right,  first,  by  the  judgment  of  the  state 
court,  and  ultimately  by  the  judgment  of  this  court,  upon 
writ  of  error.  But  such  right  cannot  be  protected  by  means 
of  a  suit  which,  at  the  outset,  is  directly  or  in  legal  effect,  one 
against  the  state  whose  action  is  alleged  to  be  illegal.  That 
mode  of  redress  is  absolutely  forbidden  by  the  nth  Amend- 
ment, and  cannot  be  made  legal  by  mere  construction,  or  by 
any  consideration  of  the  consequences  that  may  follow  from 
the  operation  of  the  statute.  Parties  cannot,  in  any  case, 
obtain  redress  by  a  suit  against  the  state.  Such  has  been 
the  uniform  ruling  in  this  court,  and  it  is  most  unfortunate 
that  it  is  now  declared  to  be  competent  for  a  Federal  circuit 
court,  by  exerting  its  authority  over  the  chief  law  officer  of 
the  state,  without  the  consent  of  the  state,  to  exclude  the 
state,  in  its  sovereign  capacity,  from  its  own  courts  when 
seeking  to  have  the  ruling  of  those  courts  as  to  its  powers 
under  its  own  statutes.  Surely,  the  right  of  a  state  to  in- 
voke the  jurisdiction  of  its  own  courts  is  not  less  than  the 
right  of  individuals  to  invoke  the  jurisdiction  of  a  Federal 
court.  The  preservation  of  the  dignity  and  sovereignty  of 
the  states,  within  the  limits  of  their  constitutional  powers,  is 
of  the  last  importance,  and  vital  to  the  preservation  of  our 
system  of  government.  The  courts  should  not  permit  them- 
selves to  be  driven  by  the  hardships,  real  or  supposed,  of 
particular  cases,  to  accomplish  results,  even  if  they  be  just 
results,  in  a  mode  forbidden  by  the  fundamental  law." 

Referring  to  In  re  Ayers,  123  U.  S.  443,  a  case  in  which 
a  suit  against  the  attorney-general  of  the  State  of  Virginia 
had  been  pronounced  a  suit  against  the  State  and  hence  void. 
Justice  Harlan,  apparently  to  show  how  far  the  present  de- 
cision was  inconsistent  with  others,  made  the  following  re- 
marks: "The  proceeding  against  the  attorney-general  of 
Virginia  had  for  its  object  to  compel,  by  indirection,  the  per- 
formance of  the  contract  which  that  commonwealth  was  al- 
leged to  have  made  with  bondholders, — such  performance, 
on  the  part  of  the  State,  to  be  effected  by  means  of  orders 


SUABILITY   OF  STATES  29 

in  a  Federal  circuit  court  directly  controlling  the  official  ac- 
tion of  that  officer.  The  proceedings  in  the  .  .  .  suit 
against  the  attorney-general  of  Minnesota  had  for  its  object, 
by  means  of  orders  in  a  Federal  circuit  court,  directed  to 
that  officer,  to  control  the  action  of  that  state  in  reference  to 
the  enforcement  of  certain  statutes  by  judicial  proceedings 
commenced  in  its  own  courts.  The  relief  sought  in  each 
case  was  to  control  the  state  hy  controlling  the  conduct  of  its 
law  officer,  against  its  will.  I  cannot  conceive  how  the  pro- 
ceeding against  the  attorney-general  of  Virginia  could  be 
deemed  a  suit  against  that  state,  and  yet  the  proceeding 
against  the  attorney-general  of  Minnesota  is  not  to  be 
deemed  a  suit  against  Minnesota,  when  the  object  and  effect 
of  the  latter  proceeding  was,  beyond  all  question,  to  shut  that 
state  entirely  out  of  its  own  courts,  and  prevent  it,  through 
its  law  officer,  from  invoking  their  jurisdiction  in  a  special 
matter  of  public  concern,  involving  official  duty,  about  which 
the  state  desired  to  know  the  views  of  its  own  judiciary.  In 
my  opinion  the  decision  in  the  Ayers  case  determines  this 
case  for  the  petitioners."  As  Justice  Harlan  had  dissented 
from  the  Ayers  case,  it  would  appear  from  the  above  that 
he  is  pleading  with  the  court  at  least  to  stand  by  something. 
Since  the  concern  in  this  case  is  not  so  much  with  Justice 
Harlan's  replies  to  arguments  given  by  the  court  as  with  his 
opinion  definitely  stated,  it  will  be  well  to  note  his  quotation 
from  Fitts  v.  McGhee,  172  U.  S.  516,  in  which  case  he  had 
written  the  opinion :  " '  In  support  of  the  contention  that  the 
present  suit  is  not  one  against  the  state,  reference  was  made 
by  counsel  to  several  cases.  .  .  .  Upon  examination  it  will 
be  found  that  the  defendants  in  each  of  those  cases  were 
officers  of  the  state,  specially  charged  with  the  execution  of 
a  state  enactment  alleged  to  be  unconstitutional,  but  under 
the  authority  of  which,  it  was  averred,  they  were  commit- 
ting or  were  about  to  commit  some  specific  wrong  or  tres- 
pass to  the  injury  of  the  plaintiff's  rights.  There  is  a  wide  dif- 
ference between  a  suit  against  individuals  holding  official 
positions  under  a  state,  to  prevent  them,  under  the  sanction 


30       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

of  an  unconstitutional  statute,  from  committing  by  some 
positive  act  a  wrong  or  trespass,  and  a  suit  against  officers 
of  a  state  merely  to  test  the  constitutionality  of  a  state 
statute,  in  the  enforcement  of  which  those  officers  will  act 
only  by  formal  judicial  proceedings  in  the  courts  of  the 
state.  In  the  present  case,  as  we  have  said,  neither  of  the 
state  officers  named  held  any  special  relation  to  the  par- 
ticular statute  alleged  to  be  unconstitutional.  They  were 
not  expressly  directed  to  see  to  its  enforcement.  If,  because 
they  were  law  officers  of  the  state,  a  case  could  be  made  for 
the  purpose  of  testing  the  constitutionality  of  the  statute 
by  an  injunction  suit  brought  against  them,  then  the  consti- 
tutionality of  every  act  passed  by  the  legislature  could  be 
tested  by  a  suit  against  the  governor  and  the  attorney-gen- 
eral, based  upon  the  theory  that  the  former  as  the  executive 
of  the  state  was,  in  a  general  sense,  charged  with  the  execu- 
tion of  all  its  laws,  and  the  latter,  as  attorney-general,  might 
represent  the  state  in  litigation  involving  the  enforcement 
of  its  statutes.  That  would  be  a  very  convenient  way  for 
obtaining  a  speedy  judicial  determination  of  questions  of 
constitutional  law  which  may  be  raised  by  individuals,  but 
it  is  a  mode  which  cannot  be  applied  to  the  states  of  the 
Union  consistently  with  the  fundamental  principle  that  they 
cannot,  without  their  assent,  be  brought  into  any  court  at 
the  suit  of  private  persons.  If  their  officers  commit  acts  of 
trespass  or  wrong  to  the  citizen,  they  may  be  individually 
proceeded  against  for  such  trespasses  or  wrong.  Under  the 
view  we  take  of  the  question,  the  citizen  is  not  without  ef- 
fective remedy,  when  proceeded  against  under  a  legislative 
enactment  void  for  repugnancy  to  the  supreme  law  of  the 
land ;  for,  whatever  the  form  of  proceeding  against  him,  he 
can  make  his  defense  upon  the  ground  that  the  statute  is 
unconstitutional  and  void.  And  that  question  can  be  ulti- 
mately brought  to  this  court  for  final  determination.'  .  .  . 
The  Fitts  case  is  not  overruled,  but  is,  I  fear,  frittered  away 
or  put  out  of  sight  by  unwarranted  distinctions." 

The  fact  that  Justice  Harlan  in  this  dissent  quoted  ap- 


SUABILITY   OF   STATES  3  I 

provingly  from  Fitts  v.  McGhee  the  opinion  as  to  what 
should  be  regarded  as  the  law  relating  to  suits  against  state 
officers  shows  that  his  embarrassment  at  the  change  of  view 
which  he  had  undergone  did  not  mean  that  he  had  entirely- 
given  up  his  theory.  It  rather  indicates  that  he  had  formed 
more  clearly  within  his  own  mind  exactly  what  was  his  doc- 
trine. The  case  of  Ex  parte  Young  had  brought  one  phase 
of  the  subject  before  him  which  apparently  he  had  not  fully 
appreciated  till  then,  that  is,  the  possibility  that  a  citizen, 
by  means  of  an  injunction  issued  by  a  circuit  court  of  the 
United  States,  could  stay  the  action  of  the  State  in  the  en- 
forcement of  its  laws.  To  that  extent,  then,  he  seems  to 
have  changed  his  mind,  but  no  further.  The  above  quota- 
tion puts  as  clearly  as  can  be  put  Justice  Harlan's  opinion 
of  the  extent  to  which  the  interpretation  of  the  eleventh 
amendment  should  go.  In  brief,  it  might  be  stated  as  fol- 
lows: Everything  that  might  arise  in  a  judicial  way  that 
would  involve  an  officer  in  his  public  capacity  ought  not  to 
be  deemed  a  suit  against  the  State,  and  hence  invalid.  And 
if  an  officer  of  the  State  should  be  called  into  court  because 
of  a  definite  act  on  his  part,  so  long  as  the  averment  was 
made  that  he  was  acting  under  an  unconstitutional  statute 
he  should  be  made  to  answer.  His  objection  to  the  deci- 
sion in  Ex  parte  Young  seems  to  be  twofold,  however. 
The  first  objection  was  that  the  officer  was  proceeded 
against  under  an  averment  that  the  general  provisions  of 
the  statute  were  unconstitutional  rather  than  for  a  definite 
act  on  his  part  under  a  statute  the  constitutionality  of  which 
was  challenged.  In  the  second  place,  he  objected  because 
by  such  action  the  circuit  court  was  blocking  the  legal  proc- 
esses of  the  State.  Through  this  means  the  court  had  given 
to  the  individual  the  power  to  halt  the  action  of  the  State, 
and  had  therefore  in  essence  violated  the  Constitution  of 
the  United  States  in  abridging  the  powers  duly  allowed  to 
the  States  by  that  instrument. 

These  two  cases  show  clearly  Justice  Harlan's  opinion 
as  to  what  should  be  the  interpretation  of  the  phrase  "  suits 


32        CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

against  States."  It  remains,  however,  to  be  seen,  by  means 
of  a  brief  comment  on  other  dissents  and  opinions  rendered 
by  him  on  this  subject,  how  consistently  he  held  to  this 
principle. 

The  decision  of  Louisiana  v.  Jumel  was  given  in  1882. 
At  that  time  Justice  Harlan  had  been  on  the  bench  only  five 
years.  This  case  marks  the  first  departure  of  the  court 
from  what  seemed  to  be  a  well-established  precedent  as  to 
the  meaning  of  the  eleventh  amendment.  Usually  Justice 
Harlan  was  not  very  careful  to  avoid  extraneous  matter  in 
his  dissents,  but  in  this  case  it  was  not  so.  Probably  no 
other  of  his  dissents  surpasses  this  one  in  clear  and  concise 
reasoning.  From  this  point  on  to  the  case  of  Ex  parte 
Young  will  be  traced  his  opinions  and  dissents  in  the  more 
important  cases  which  have  included  that  question.  The 
most  important  cases  are:  Antoni  v.  Greenhow,  107  U.  S. 
769;  Cunningham  v.  Macon  and  Brunswick  R.  Co.,  109  U. 
S.  446;  Hapgood  V.  Southern,  117  U.  S.  52;  In  re  Ayers, 
123  U.  S.  443;  Belknap  v.  Schild,  161  U.  S.  10;  Fitts  v. 
McGhee,  172  U.  S.  516;  Tindal  v.  Wesley,  167  U.  S.  204; 
International  Postal  Supply  Co.  v.  Bruce,  194  U.  S.  601. 

In  the  case  of  Antoni  v.  Greenhow  the  vexed  question  of 
the  suability  of  States  came  up  only  incidentally.  This 
case  was  decided  next  after  Louisiana  v.  Jumel,  and  in- 
volved a  similar  situation.  In  1871  Virginia  passed  a  law 
making  the  interest  coupons  of  a  bond  issue  receivable  at 
and  after  maturity  for  all  taxes,  debts,  dues,  and  demands 
of  the  State.  Later  the  General  Assembly  passed  another 
act  prohibiting  the  officers  in  charge  of  the  collection  of 
taxes  from  receiving  in  payment  anything  else  than  gold, 
coin,  and  so  on.  Subsequent  to  the  passage  of  this  act  mak- 
ing it  unlawful  to  accept  such  coupons  for  taxes  one  An- 
drew Antoni  attempted  to  pay  taxes  with  interest  coupons. 
Upon  the  refusal  of  the  officer  to  accept  them,  Antoni  took 
the  matter  into  court.  The  question  was  taken  to  the  Su- 
preme Court  of  the  United  States  by  writ  of  error  on  the 
ground  that  this  subsequent  legislation  was  an  impairment 


SUABILITY   OF   STATES  33 

of  the  obligation  of  contracts.  By  nice  distinctions  it  was 
decided  that  such  action  on  the  part  of  the  State  did  not 
impair  the  obligation  of  contracts,  and  the  question  of  suabil- 
ity was  put  aside  as  not  being  of  necessity  decided  in  this 
case. 

Justice  Harlan,  still  warm  from  his  dissent  in  the  Louisi- 
ana case,  made  the  following  remark :  "  It  should  be  remem- 
bered that  the  court  places  its  decision  upon  the  ground  that 
the  change  in  the  remedy  has  not,  in  legal  effect,  impaired 
the  obligation  of  the  contract,  and  not  upon  the  ground 
that  this  suit  is,  within  the  meaning  of  the  Federal  Constitu- 
tion, a  suit  against  the  State.  Nor  could  it  be  placed  upon 
the  latter  ground  without  overturning  the  settled  doctrines 
of  this  court.  ...  It  is  a  case  in  which  a  plain  official 
duty,  requiring  no  exercise  of  discretion,  is  to  be  performed, 
and  where  performance  in  the  mode  stipulated  by  the  con- 
tract is  refused." 

Cunningham  v.  Macon  and  Brunswick  R.  Co.  brings  up 
again  the  interpretation  of  the  eleventh  amendment.  The 
facts  in  this  case  were  as  follows :  The  State  of  Georgia 
endorsed  the  bonds  of  a  railroad  company,  taking  a  lien 
upon  the  railroad  as  security.  The  company  failing  to  pay 
interest  upon  endorsed  bonds,  the  governor  of  the  State 
took  possession  of  the  road,  and  put  it  into  the  hands  of  a 
receiver,  who  made  sale  of  it  to  the  State.  The  State  took 
possession  of  it,  and  took  up  the  endorsed  bonds,  substitut- 
ing the  bonds  of  the  State  in  their  place.  The  holders  of 
the  mortgage  bonds  issued  by  the  railroad  company  subse- 
quently to  those  endorsed  by  the  State,  but  before  the  de- 
fault in  payment  of  interest,  filed  a  bill  in  equity  to  foreclose 
their  own  mortgage  and  set  aside  the  said  sale  and  to  be  let 
in  as  a  prior  in  Hen,  for  other  relief  affecting  the  property, 
and  set  forth  the  above  facts  and  made  the  governor  and 
the  treasurer  of  the  State  parties.  Those  officers  demurred, 
and  it  was  held  that  the  State  was  so  much  interested  in  the 
property  that  relief  could  not  be  granted  without  making  it 
a  party,  and  that  the  court  was  without  jurisdiction. 


34       CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

The  argument  of  the  court  was  very  similar  to  that  in 
Louisiana  v.  Jumel.  Without  going  into  the  content  of 
Justice  Harlan's  dissent,  his  opinion  may  be  summarized  as 
follows :  In  deciding  the  case  the  court  had  overlooked  cer- 
tain vital  points  which  would  have  proved  that  the  State 
was  not  legally  in  possession  of  the  property.  Hence  the 
suit  against  the  officers  of  the  State  should  have  been  enter- 
tained to  establish  this  fact,  and  to  put  the  property  into  the 
hands  of  the  legal  owners.  The  court  in  this  case  seemed 
to  say  that  the  mere  plea  of  possession  in  the  name  of  the 
State  exempts  from  suit,  whereas  Justice  Harlan  desired 
that  the  legal  status  of  this  possession  be  established  and 
that  this  be  done  by  entertaining  a  suit  against  the  officers 
of  the  State. 

In  Hapgood  v.  Southern,  another  case  involving  the  issue 
of  bonds,  the  same  question  was  to  be  answered  as  in  Louisi- 
ana V.  Jumel.  Justice  Harlan  admitted  that  this  case  was 
governed  by  that  decision,  but  denied  again  the  rightfulness 
of  it. 

Since  the  case  of  In  re  Ayers  has  been  referred  to  and 
sufficiently  explained,  it  is  unnecessary  to  go  further  into 
its  details.  In  his  dissent  from  this  case  Justice  Harlan 
quoted  approvingly  a  precedent  cited  in  United  States  v.  Lee 
from  Osborn  v.  Bank  of  United  States  as  follows :  "  Where 
the  State  is  concerned,  the  State  should  be  made  a  party,  if 
it  can  be  done.  That  it  cannot  be  done  is  a  sufficient  reason 
for  the  omission  to  do  it,  and  the  court  may  proceed  to 
decree  against  the  officers  of  the  State  in  all  respects  as  if 
the  State  were  a  party  to  the  record.  In  deciding  who  are 
parties  to  the  suit,  the  court  will  not  look  beyond  the  record. 
Making  a  state  officer  a  party  does  not  make  the  State  a 
party,  although  her  law  may  have  prompted  his  action,  and 
the  State  may  stand  behind  him  as  a  real  party  in  interest. 
A  State  can  be  made  a  party  only  by  shaping  the  bill  ex- 
pressly with  that  view,  as  where  individuals  or  corporations 
are  intended  to  be  put  in  that  relation  to  the  case." 

In  the  following  quotation  from  Justice  Harlan's  dissent 


SUABILITY   OF   STATES  35 

from  Belknap  v.  Schild  is  found  a  good  illustration  of  his 
vehemence  when  he  opposed  vigorously  the  decision  of  the 
court:  "If  the  United  States  may  appropriate  to  public  use 
the  invention  of  a  patentee,  without  his  consent,  and  without 
liability  to  suit,  as  upon  implied  contract,  for  the  value  of 
the  use  of  such  invention;  if,  as  the  court  holds,  a  public 
officer  acting  only  in  the  interest  of  the  public  is  not  indi- 
vidually liable  for  gains,  profits,  and  advantages  that  may 
accrue  to  the  United  States  from  such  use ;  and  if  the  officer 
who  thus  violates  the  rights  of  the  patentee  cannot  be  re- 
strained by  injunction, — then  the  government  may  well  be 
regarded  as  organized  robbery  so  far  as  the  rights  of  paten- 
tees are  concerned." 

It  had  been  decided  by  the  court  that  in  a  suit  in  equity 
brought  by  the  patentee  of  an  improvement  in  caisson  gates 
against  officers  of  the  United  States,  who  were  using  in  their 
official  capacity  at  a  dry  dock  in  a  navy  yard  a  caisson 
gate  made  and  used  by  the  United  States  in  infringement 
of  his  patent,  the  plaintiff  is  not  entitled  to  an  injunction. 
Nor  can  he  recover  profits  if  the  only  profit  proved  is  a  sav- 
ing to  the  United  States  in  the  cost  of  the  gate. 

The  case  of  Fitts  v.  McGhee,  in  which  the  decision  was 
rendered  by  Justice  Harlan  himself,  gave  an  excellent  oppor- 
tunity for  him  to  express  by  way  of  dictum  what  he  seemed 
so  much  to  desire  should  become  law.  The  question  was 
the  vaHdity  of  a  statute  of  Alabama  which  established  a 
maximum  rate  of  tolls  for  a  bridge  across  the  Tennessee 
River.  The  owners  of  the  bridge  claimed  that  since  this 
rate  did  not  allow  them  reasonable  compensation  it  took 
their  property  without  due  process  of  law.  The  United 
States  circuit  court  took  cognizance  of  the  case,  held  that 
the  act  was  unconstitutional,  and  issued  an  injunction 
against  the  officers  of  the  State  to  prevent  them  from 
arresting  the  bridge  officials.  It  was  taken  to  the  Supreme 
Court  on  the  plea  that  such  an  injunction  was  a  suit  against 
the  State  within  the  meaning  of  the  eleventh  amendment. 


36       CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

The  decision  was  rendered,  however,  on  the  jurisdiction  of 
the  circuit  court.  Its  decision  was  reversed  on  the  ground 
that  it  had  taken  jurisdiction  over  something  which  should 
have  been  settled  in  the  state  courts  and  appealed,  if  neces- 
sary, by  writ  of  error  to  the  United  States  Supreme  Court. 
In  this  case,  however,  is  found  the  first  clear  statement  of 
Justice  Harlan's  real  opinion  as  to  what  should  be  the  law 
regarding  suits  against  officers  of  a  State.  It  was  quoted 
in  his  dissent  from  Ex  parte  Young  and  noted  above, 
namely,  that  suits  against  officers,  though  for  acts  done  in 
their  official  capacity,  should  be  entertained  if  a  definite 
damage  had  been  averred  under  the  statute  supposed  to  be 
unconstitutional. 

In  Tindal  v.  Wesley  Justice  Harlan  was  also  called 
upon  to  deliver  the  opinion  of  the  court.  This  case  was  to 
test  the  legality  of  the  title  to  certain  land  held  in  South 
Carolina  in  the  name  of  the  State.  The  defendants,  officers 
of  the  State,  seem  to  have  got  possession  of  it  by  paying  for 
it  with  a  kind  of  paper  issue  which  was  practically  worthless. 
The  possession  of  the  land  by  the  State  of  South  Carolina 
corresponded  very  significantly  to  the  possession  of  the  Lee 
estate  by  the  United  States,  in  that  the  rightful  owners  had 
not  been  duly  paid  for  their  property.  In  this  case  Justice 
Harlan  extended  to  the  States  the  principle  set  forth  in  the 
Lee  case.  He  referred  largely  to  the  latter  decision.  In 
the  case  of  Tindal  v.  Wesley  is  seen  a  comparatively  recent 
decision  in  which  a  suit  against  officers  of  a  State  in  their 
official  capacity  was  entertained  and  decided  against  them. 

The  next  and  last  case  in  this  connection  is  that  of  the 
International  Postal  Supply  Co.  v.  Bruce.  The  decision  in 
this  case  was  brief  and  concise,  but  the  dissent  was  lengthy. 
Justice  Holmes  rendered  the  decision.  Justice  Harlan  dis- 
sented. His  dissent  held  the  same  contention,  but  it  showed 
some  new  features.  He  said  at  the  outset:  "The  United 
States  is  not  here  sued,  although,  as  in  United  States  v.  Lee, 
it  may  be  incidentally  affected  by  the  result.  No  decree  is 
asked  against  it.     The  suit  is  against  Dwight  H.  Bruce,  who 


SUABILITY   OF   STATES  3/ 

is  proceeding  in  violation  of  the  plaintiff's  right  of  property, 
and  denies  the  power  of  any  court  to  interfere  with  him, 
solely  upon  the  ground  that  what  he  is  doing  is  under  the 
order  and  sanction  of  the  Postoffice  Department.  He  is,  so 
to  speak,  in  the  possession  of,  and  wrongfully  using,  the 
plaintiff's  patented  invention,  and  denies  the  right  of  any 
court,  by  its  mandatory  order,  to  prevent  him  from  continu- 
ing in  his  lawless  invasion  of  a  right  granted  by  the  Con- 
stitution and  laws  of  the  United  States." 

This  suit  was  brought  against  the  postmaster  by  the 
owner  of  letters  patent  on  a  machine  for  canceling  and 
postmarking.  Its  purpose  was  to  restrain  this  postmaster 
from  using  such  infringing  machines,  which  had  been  hired 
from  the  manufacturer  by  the  Postoffice  Department  for  a 
term  not  yet  expired.  The  gist  of  the  argument  for  the 
court  appears  in  the  following  sentences :  "  In  the  case  at 
bar  the  United  States  is  not  the  owner  of  the  machines,  it  is 
true,  but  it  is  a  lessee  in  possession,  for  a  term  which  has 
not  expired.  It  has  a  property, — a  right  in  rem, — in  the 
machines,  which,  though  less  extensive  than  absolute  owner- 
ship, has  the  same  incident  of  a  right  to  use  them  while  it 
lasts.  This  right  cannot  be  interfered  with  behind  its  back ; 
and,  as  it  cannot  be  made  a  party,  this  suit,  like  that  of 
Belknap  v.  Schild,  must  fail.  The  answer  to  the  question 
certified  must  be  *  No.'  Whether  or  not  a  renewal  of  the 
lease  could  be  enjoined  is  not  before  us." 

It  appears,  then,  that  it  was  not  the  fact  that  the  decision 
was  against  the  patentee  which  aroused  Justice  Harlan's 
ire,  but  it  was  the  precedent  which  the  peculiar  wording  of 
the  decision  seemed  to  set.  He  could  not  justify  in  his 
mind  the  infringement  on  the  part  of  the  United  States  of 
a  patentee's  rights.  It  was  this  precedent  which  he  was 
citing  when  he  said:  "I  am  of  opinion  that  every  officer 
of  the  government,  however  high  his  position,  may  be  pre- 
vented by  injunction,  operating  directly  upon  him,  from 
illegally  injuring  or  destroying  the  property  rights  of  the 


38        CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

citizen;  and  this  relief  should  more  readily  be  given  when 
the  government  itself  cannot  be  made  a  party  of  record." 
Yet  the  decision  seems  to  hold  that  the  government  may  use 
patented  articles  regardless  of  the  rights  of  the  patentee, 
because  of  the  fact  that  there  is  no  way  to  stay  the  action 
of  the  government  by  enjoining  the  officer.  It  must  be 
added  that  by  an  act  of  1910  Congress  has  provided  that 
such  persons  may  appeal  to  the  court  of  claims  and  get 
compensation.  But  this  provision,  of  course,  does  not  give 
fuy  relief  because  it  is  necessary  that  a  large  amount  of 
money  be  involved  in  order  to  get  a  case  into  that  court. 
Nevertheless  the  government,  if  not  the  court,  has  to  that 
extent  come  to  accept  Justice  Harlan's  doctrine. 

Justice  Harlan's  Doctrine  of  Suability. — There  seem  to 
be  mainly  three  grounds  upon  which  an  attempt  is  made  to 
justify  the  theory  of  non-suability.  The  strongest  has  been 
aptly  stated  by  Justice  Miller  in  United  States  v.  Lee :  "  It 
seems  most  probable  that  it  has  been  adopted  in  our  courts 
as  a  part  of  the  general  doctrine  of  publicists  that  the 
supreme  power  in  every  state,  wherever  it  may  reside,  shall 
not  be  compelled,  by  process  of  courts  of  its  own  creation, 
to  defend  itself  in  those  courts."  This  principle  is  given 
the  most  prominent  place  in  a  discussion  of  the  develop- 
ment of  the  theory  of  non-suability  of  States  in  the  United 
States.^ 

But  it  seems  that  this  contention  may  be  open  to  some 
objections,  at  least  from  Justice  Harlan's  standpoint.  In 
fact,  it  may  even  be  questioned  whether  this  contention  in 
essence  conflicts  with  his  theory  of  suability.  To  answer 
that  necessitates  a  clear  analysis  of  the  meaning  of  terms. 
What  is  meant  when  it  is  said  that  the  courts  are  the  crea- 
tion of  the  supreme  power?  What  is  meant  by  the  supreme 
power?  These  questions,  of  course,  have  been  discussed 
fully  by  students  of  political  science  generally.     The  con- 

1  K.  Singewald,  "  The  Doctrine  of  Non-suability  of  the  State  in 
the  United  States,"  in  Johns  Hopkins  Studies,  series  xxviii,  no.  3, 
p.  10. 


SUABILITY   OF   STATES  39 

sensus  of  opinion  seems  to  be  that  this  supreme  power  is 
the  will  of  the  people.  This  will  is  usually  expressed  in  a 
convention  which  forms  a  constitution,  and  this  constitu- 
tion gives  the  courts  their  jurisdiction,  or  at  least  outlines 
the  position  which  they  are  to  occupy  in  the  government. 
Does,  then,  a  suit  against  an  officer  in  his  official  capacity 
necessarily  imply  the  bringing  of  this  supreme  power  before 
a  court  for  trial?  The  supreme  power  is  the  constitution. 
This  constitution  allows  the  legislature  to  make  laws  along 
certain  lines.  It  also  allows  the  courts  to  interpret  these 
laws  and  to  determine  whether  the  laws  made  are  along  the 
line  of  the  constitution.  Why,  then,  should  not  the  court, 
which  is  duly  designated  as  the  final  arbiter  of  the  constitu- 
tionality of  laws,  summon  officers  of  the  State  and  cause 
them  to  show  that  any  law  that  involves  the  functionaries 
of  the  State  is  in  accordance  with  the  constitution?  Why 
should  it  not  make  them  justify  their  actions?  Why  should 
it  be  considered  legal  for  the  State  to  allow  its  officers  to  act 
in  a  way  as  regards  itself  and  the  citizens  of  the  State  that 
would  be  pronounced  wrong  as  regards  the  citizens  in  their 
relations  to  each  other?  How  are  we  going  to  know  that 
such  an  act  is  in  accordance  with  the  will  of  the  State 
unless  it  can  be  proved?  In  other  words,  how  can  we  say 
that  such  an  action  is  in  reality  an  expression  of  the  will  of 
that  supreme  power  until  all  of  the  organs  of  the  supreme 
power,  designated  by  it  to  have  a  say  in  the  matter,  have 
either  tacitly  or  expressly  given  their  assent? 

The  second  contention  was  voiced  by  Justice  Gray  in 
Briggs  V.  Light-Boat,  ii  Allen  157,  as  follows :  "The broader 
reason  is  that  it  would  be  inconsistent  with  the  very  idea  of 
supreme  executive  power,  and  would  endanger  the  per- 
formance of  the  public  duties  of  the  sovereign,  to  subject 
him  to  repeated  suits  as  a  matter  of  right,  at  the  will  of  any 
citizen,  and  to  submit  to  the  judicial  tribunals  the  control 
and  disposition  of  his  public  property,  his  instruments  and 


40       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

means  of  carrying  on  his  government  in  war  and  in  peace, 
and  the  money  in  his  treasury."^ 

This  assertion  means  that  shutting  out  a  whole  class  of 
cases  would  necessarily  reduce  the  number  of  suits  to  be 
tried.  But  it  also  means  a  little  more  than  that.  It  means 
that  there  would  be  shut  out  a  particularly  disturbing  class, 
one  that  might  make  the  government  falter  in  the  perform- 
ance of  its  duties.  But  is  this  assumption  valid?  The 
answer  must  be  that  it  is  not.  As  the  cases  discussed  have 
shown,  the  court  has  not  succeeded  sufficiently  well  in  defin- 
ing that  class  of  cases  to  shut  it  out.  As  a  matter  of  fact, 
it  has  aggravated  the  situation  by  allowing  certain  suits 
against  officers  in  their  official  capacity,  while  refusing  relief 
to  others  with  an  equally  good  claim  to  be  heard.  This 
uncertainty  in  the  law  has  tended  to  increase  the  number  of 
unconstitutional  statutes  passed.  With  this  increase  and 
with  the  uncertainty  of  the  law  has  come  the  tendency  to 
bring  additional  suits,  and  the  situation  has  been  made 
worse.  If  it  were  recognized  once  for  all  that  officers  may 
be  sued,  this  tendency  toward  the  passage  of  unconstitu- 
tional legislation  would  naturally  be  checked,  and  thus  the 
number  of  suits  testing  this  legislation  would  tend  to  lessen. 

An  additional  very  logical  objection  is  made  by  Justice 
Holmes  in  Kawananakoa  v.  Polyblank,  205  U.  S.  349:  "A 
sovereign  is  exempt  from  suit,  not  because  of  any  formal 
conception  or  obsolete  theory,  but  on  the  logical  and  prac- 
tical ground  that  there  can  be  no  legal  right  as  against  the 
authority  that  makes  the  law  on  which  the  right  depends." 

This  objection  sounds  convincing,  but  a  careful  examina- 
tion may  reveal  faulty  premises.  There  is  little  reason  why 
there  could  not  be  legal  action  against  officers  of  States. 
In  fact,  it  is  practiced  to  no  small  extent  on  the  continent  of 
Europe.  The  one  thing  for  which  our  nation  stands  is  the 
submission  of  everybody  to  law.  Why  then  should  it  be 
legal  for  officers  of  the  government  to  commit  acts  in 
behalf  of  the  state  which  are  recognized  as  wrong  for 

2  Singewald,  p.  10. 


SUABILITY   OF   STATES  4 1 

individuals?  Does  not  the  fact  that  the  supreme  power 
has  said  that  certain  things  are  wrong  between  man  and 
man  imply  that  those  things  are  wrong  between  the  govern- 
ment and  the  citizens? 

Moreover,  concerning  the  ability  of  the  court  to  enforce 
its  decree  upon  the  officers  in  question,  it  is  only  necessary 
to  say  that  decrees  seldom  need  to  be  enforced  by  com- 
pulsion,— except  those  of  a  criminal  nature,  and  these  are 
not  in  question  here.  A  case  would  hardly  rise  which 
would  require  violence  in  enforcement,  involving  the  in- 
terpretation of  the  Constitution.  But  even  if  it  did,  it  is 
certain  that  no  court  would  be  foolish  enough  to  entertain 
a  suit  against  an  officer  whose  consent  was  needed  to  enforce 
its  decree.  There  will  usually  be  a  way  around  this,  and 
there  is  no  reason  why  the  court  should  not  go  as  far  as  it 
can  in  this  regard,  instead  of  pronouncing,  at  every  little 
pretense,  that  an  action  against  an  officer  is  a  suit  against 
the  State.  Such  an  interpretation  would  almost  certainly 
center  public  opinion  more  strongly  upon  the  Constitution, 
and  would  tend  to  purify  the  fundamental  law.  The  case 
of  United  States  v.  Lee  seems  to  be  a  wise  decision  and  to 
establish  a  worthy  precedent. 

A  further  objection  might  also  be  urged,  namely,  that 
such  a  doctrine  as  that  for  which  Justice  Harlan  stood 
might  intimidate  officers.  If  this  doctrine  were  recognized 
as  constitutional,  they  might  hesitate  to  enforce  the  laws 
for  fear  that  the  laws  might  be  declared  unconstitutional. 
This  objection  could  hardly  hold,  for  two  reasons:  In  the 
first  place,  the  officers  would  certainly  not  be  individually 
responsible  for  acts  done  at  the  direction  of  the  State. 
Since,  then,  their  personal  responsibility  would  be  no 
greater,  their  refusal  to  obey  would  be  useless.  In  the 
second  place,  the  court  can  by  mandamus  force  an  officer  to 
perform  ministerial  functions. 

Viewing  the  subject  in  the  light  of  the  above  reasons, 
there  appear  to  be  no  grounds  for  real  objection  to  Justice 


42        CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

Harlan's  contention  that  a  suit  against  an  officer  to  prevent 
him  from  enforcing  against  an  individual  a  definite  pro- 
vision of  a  law  should  be  maintained  in  all  cases  in  order 
to  test  the  constitutionality  of  the  law  under  which  the 
action  is  taken.  As  a  result  of  such  an  interpretation  of  the 
eleventh  amendment  the  number  of  cases  which  would 
arise  on  account  of  the  uncertainty  of  the  law  would  almost 
certainly  be  lessened,  as  there  would  be  less  danger  that  a 
State  would  try  to  cover  unconstitutional  legislation  under 
the  plea  of  the  non-suability  of  States.  There  is  little 
reason  why  a  State  should  allow  its  officers  to  commit  acts 
which  are  considered  wrong  for  its  citizens  to  commit. 


CHAPTER   II 
Impairment  of  the  Obligation  of  Contracts 

Since  the  question  of  the  suability  of  States  is  so  closely 
related  to  that  of  the  obligation  of  contracts,  it  is  natural 
that  this  subject  should  be  considered  next.  Some  of  this 
discussion  will  be  derived  from  cases  which  have  been 
alluded  to  in  the  previous  chapter,  but  whereas  in  that 
chapter  the  concern  was  with  the  suability  phase,  it  is  now 
with  the  contract  phase. 

The  Constitution  of  the  United  States  has  two  clauses 
which  might  prohibit  a  State  from  impairing  the  obligation 
of  contracts.  The  first  is  the  express  provision,  in  article  i, 
section  lo,  that  no  State  shall  pass  any  "law  impairing  the 
obligation  of  contracts  " ;  the  second  provision  is  that  por- 
tion of  the  fourteenth  amendment  which  reads  that  no  State 
shall  deprive  "  any  person  of  life,  liberty  or  property,  with- 
out due  process  of  law."  Either  of  these  stipulations  might 
have  the  meaning  desired,  but  since  there  is  the  express 
prohibition  in  the  original  draft  of  the  Constitution,  the 
second  has,  of  course,  no  great  importance  here. 

The  Relation  of  a  State  to  its  Contracts. — This  question 
has  already  been  somewhat  discussed  in  the  consideration 
of  the  suability  of  States.  It  will  now  be  developed  more 
fully. 

The  Supreme  Court  has  decided  that  the  acts  of  the 
States  during  the  Civil  War  should,  for  the  most  part,  be 
valid,  except  in  so  far  as  they  were  directly  in  aid  of  the 
rebellion.  Whereas  the  court  has  tried  to  make  this  ruling 
as  extensive  as  possible.  Justice  Harlan  has,  at  times,  stood 
for  a  somewhat  narrower  doctrine.  The  case  of  Keith  v. 
Clark,  97  U.  S.  454,  illustrates  this  point.  Here  the  court 
decided  that  notes  issued  by  the  Bank  of  Tennessee  in  the 

43 


44       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

year  1861,  after  the  outbreak  of  the  Civil  War,  should  be 
received  in  payment  of  taxes.  The  facts  of  the  case  were 
these:  In  1838  the  State  had  stipulated  in  the  charter  of 
the  bank  that  the  notes  of  the  bank  should  be  received  in 
payment  of  taxes.  Subsequent  to  the  war  a  man  tendered 
forty  dollars  of  these  notes,  issued  during  the  war  while  the 
State  was  a  member  of  the  Confederacy.  The  question, 
therefore,  was,  did  the  refusal  of  the  tax-collector,  on 
authority  of  a  state  act,  to  accept  the  notes  of  the  Bank  of 
Tennessee  issued  while  the  State  was  in  rebellion  consti- 
tute an  impairment  of  the  obligation  of  contracts ;  or,  better, 
was  the  act  which  authorized  that  refusal  an  impairment 
of  the  obligation  of  contracts,  since  the  State  had,  when  the 
bank  was  chartered,  agreed  to  accept  its  notes  for  taxes? 
The  court  said  that  such  a  statute  did  not  impair  the  obliga- 
tion of  contracts,  and  that  the  notes  should  have  been 
accepted  for  taxes. 

The  reasons  for  the  holding  of  the  court  were  three :  First, 
the  State  of  Tennessee  had  never  legally  been  out  of  the 
Union,  and  hence  its  acts  during  the  war  had  to  be  reckoned 
with.  Second,  in  spite  of  the  fact  that  the  States  had  so 
far  succeeded  in  separating  themselves  from  the  Union  as 
to  establish  usurping  governments,  yet  even  those  govern- 
ments could  not  be  entirely  overlooked;  their  acts  should 
be  accepted  as  far  as  could  be  done.  A  contrary  doctrine, 
it  was  claimed,  would  be  opposed  to  the  powers  inherent  in 
every  organized  society.  Third,  since  the  record  did  not 
show  that  the  notes  had  been  issued  in  aid  of  rebellion,  they 
ought  to  be  considered  as  not  having  been  issued  for  that 
purpose. 

The  ground  upon  which  Justice  Harlan  rested  his  dissent 
was  that  the  duly  recognized  State  was  not  legally  bound 
to  accept  acts  which  had  been  passed  under  usurping 
authority.  Since  the  notes  issued  at  this  time  were  of  little 
value,  there  was  no  reason  for  declaring  the  particular  act 
invalid  which  forbade  the  acceptance  of  the  notes.  "  They 
were,"  he  said,  "the  obligations  of  an  institution  controlled 


IMPAIRMENT   OF   OBLIGATION   OF   CONTRACTS  45 

and  managed  by  a  revolutionary  usurping  State  Govern- 
ment, in  its  name,  for  its  benefit,  and  to  prevent  the  restora- 
tion of  the  lawful  government.  It  was  the  revolutionary 
government  which  undertook  to  withdraw  the  State  of 
Tennessee  from  its  allegiance  to  the  Federal  Government 
and  make  it  one  of  the  Confederate  States.  When,  there- 
fore, the  people  of  Tennessee,  who  recognized  the  authority 
of  the  United  States,  assembled  in  delegate  convention,  in 
January,  1865,  it  was  quite  natural  and,  in  my  judgment, 
not  in  violation  of  the  Federal  Constitution"  for  them  to 
declare  invalid  bonds,  notes,  and  so  on,  issued  under  the 
usurping  government. 

**  There  is  some  difficulty  in  defining  precisely  what  Acts 
of  the  usurping  State  Government  the  restored  State  Gov- 
ernment should  have  recognized  as  valid  and  binding.  It 
may  be  true  that  there  were  some  of  them  which  should, 
upon  grounds  of  public  policy,  have  been  recognized  by  the 
lawful  government  as  valid  and  binding.  It  may  be  that 
the  courts,  in  absence  of  any  declaration  to  the  contrary  by 
the  lawful  government,  should  recognize  certain  Acts  of 
the  revolutionary  government  as  prima  facie  valid.  But  I 
am  unwilling  to  give  my  assent  to  the  doctrine  that  the  Con- 
stitution of  the  United  States  imposed  upon  the  lawful 
Government  of  Tennessee  an  obligation,  which  this  court 
must  enforce,  to  cripple  its  own  revenue,  by  receiving  for 
its  taxes  bank-notes  issued  and  used,  under  the  authority 
of  the  usurping  government,  for  the  double  purpose  of 
maintaining  itself  and  defeating  the  restoration  of  the  law- 
ful government  in  its  proper  relations  in  the  Union." 

Hence,  though  Justice  Harlan  would  have  recognized 
certain  of  the  acts  of  the  revolutionary  governments  as 
valid,  he  would  have  drawn  a  much  stricter  line  than  did 
the  court.  Above  all,  he  would  not  have  recognized  the 
validity  of  acts  which  the  reinstated  government  had  at- 
tempted to  make  invalid,  at  least  to  such  an  extent  as  to 
make  the  government  take  depreciated  money  for  taxes,  for 
this  in  itself  would  have  meant  that  the  usurping  govern- 
4 


46       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

merit,  even  after  the  war,  was  working  toward  the  weaken- 
ing of  the  recognized  legal  government.  He  would  have 
been  less  liberal  in  this  regard,  and  would  not  have  counter- 
acted legislation  which  enabled  the  State  to  obtain  valid 
money  for  its  taxes,  when  there  was  sufficient  reason  for 
declaring  constitutional  the  act  which  imposed  this  re- 
quirement. 

Though  the  courts  have  been  careful  not  to  uphold  laws 
impairing  the  obligation  of  contracts  among  individuals, 
they  have  not  been  so  particular  to  see  that  a  State  should 
not  impair  its  own  contracts.  As  has  been  seen,  they  have 
usually  succeeded  in  getting  out  of  this  situation  by  assert- 
ing the  suits  to  be  against  the  States.  As  was  brought  out  in 
the  first  chapter,  the  case  of  Louisiana  v.  Jumel,  107  U.  S. 
711,  well  illustrated  this  point.  Here  no  one  questioned  the 
fact  that  an  amendment  to  the  state  constitution  had  im- 
paired the  obligation  of  contracts.  The  only  question  was 
whether  any  remedy  at  law  could  be  found  whereby  this 
impairment  could  be  thwarted.  The  court  decided  that 
since  a  suit  could  not  be  entertained  against  officers  of  a 
State  in  their  official  capacity,  there  was  no  remedy.  As 
was  pointed  out,  however,  the  courts  have  been  irresolute  in 
holding  to  this  doctrine,  while  Justice  Harlan  was  very 
resolute  in  opposing  it.  According  to  him,  the  contract  of  a 
State  was  even  more  sacred  than  that  of  a  person,  and  the 
plea  that  the  suit  was  against  the  State  should  not  permit  a 
State  to  violate  the  contract  clause.  As  he  argued  in  his 
dissent  from  Louisiana  v.  Jumel,  he  has  argued  even  more 
vigorously  in  other  cases. 

The  case  of  Antoni  v.  Greenhow,  107  U.  S.  769,  illustrates 
this,  and  is  typical  of  the  success  of  a  State  in  repudiating 
its  debt  through  indirect  methods.  In  1871  Virginia  passed 
a  law  providing  for  a  bond  issue  in  order  to  float  her  public 
debt.  In  this  act  it  was  provided,  among  other  things,  that 
the  interest  coupons  of  the  bonds  should  be  receivable  for 
taxes,  and  that  if  the  collector  should  refuse  to  accept  them 
in  payment  of  taxes  he  could  be  forced  by  mandamus  to  do 


IMPAIRMENT   OF   OBLIGATION   OF   CONTRACTS  4/ 

SO.  In  1882  an  act  was  passed  which  purported  to  counter- 
act an  accumulation  of  fraudulent  coupons.  It  provided 
that  no  coupons  should  be  accepted  for  taxes,  and  that  all 
taxes  must  be  paid  in  currency.  If  anyone,  however,  should 
tender  interest  coupons,  they  could  be  received  and  the  ques- 
tion as  to  their  genuineness  be  submitted  to  a  jury.  If  they 
were  held  to  be  genuine,  the  money  paid  would  be  refunded. 
The  question,  then,  was  whether  this  act  of  1882  impaired 
the  obligation  of  contracts,  and  whether  it  was  therefore 
unconstitutional.  The  court  said  no.  So  long  as  the 
coupons  were  still  receivable  for  taxes  the  obligation  was 
not  impaired,  and  the  method  of  receiving  them  was  imma- 
terial. In  short,  the  change  in  remedy  for  non-acceptance 
from  mandamus  to  jury  trial  did  not  mean  an  impairment 
of  the  obligation  of  contracts. 

This  decision  did  not  meet  with  the  approval  of  Justice 
Harlan.  He  contended  that  a  change  in  remedy  which  im- 
posed new  and  burdensome  conditions  upon  the  coupon 
holders  to  such  an  extent  as  to  make  the  coupons  in  fact 
valueless  in  their  hands  was  necessarily  an  impairment  of 
the  obligation  which  they  evidenced.  The  former  act  had 
made  the  coupons  receivable  for  taxes,  and  had  arranged 
for  their  acceptance  to  be  enforced;  the  second  act  had 
granted  that  the  coupons  were  receivable,  but  had  made  it 
impossible  for  the  holders  to  have  them  accepted  without 
going  to  greater  expense  than  the  value  of  the  coupons. 

In  answer  to  the  argument  that  counterfeit  coupons  might 
be  presented,  he  said  that  if  the  collector  did  not  know  cer- 
tain coupons  to  be  valid  there  were  sufficient  means  of  veri- 
fication. All  that  the  tax  collector  had  to  do  was  to  refuse 
them,  and  when  the  holder  applied  for  a  mandamus  to  force 
their  acceptance  there  was  opportunity  to  have  the  coupons 
tested.  The  act  of  1882,  therefore,  was  neither  expedient 
nor  constitutional,  and  could  not  obtain  his  assent. 

Following  upon  Antoni  v.  Greenhow  was  the  case  of  Ex 
parte  Ayers,  123  U.  S.  443.     The  State  of  Virginia  had 


48        CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

found  it  necessary  to  pass  even  more  stringent  laws  to  pre- 
vent the  taxpayers  from  forcing  their  claims.  An  English 
brokerage  establishment  had  bought  $100,000  worth  of  those 
coupons,  in  London,  buying  them  for  about  $30,000,  for  the 
purpose  of  selling  them  to  the  taxpayers  of  Virginia,  of 
course  at  an  increase  upon  cost,  but  at  a  price  below  face 
value.  To  meet  this  move,  the  State,  by  statute,  established 
additional  restrictions  to  be  complied  with  before  the 
coupons  could  be  accepted  for  taxes, — acts  passed,  of  course, 
under  the  guise  of  means  to  detect  counterfeit  coupons. 
There  were  two  chief  characteristics  of  these  laws:  First, 
in  order  to  make  the  coupon  receivable  the  one  who  owned 
it  had  to  be  able  to  present  the  original  bond  from  which  it 
was  cut;  secondly,  no  expert  evidence  was  allowed  in  the 
court  to  verify  the  coupons,  that  is,  no  attorney  could  be 
employed.  Thus  by  the  various  acts  in  question  the  State 
had  forced  the  taxpayers  "  into  a  lawsuit  in  her  own  courts, 
in  which  she  has  taken  effectual  precaution  beforehand  to 
make  it  impossible  they  can  win."  Such  legislation  the 
plaintiffs  contended  to  be  an  impairment  of  the  obligation  of 
the  State's  contracts.  Pressed  to  the  wall  by  this  contention, 
the  officers  of  the  State  pleaded  that  the  suit  against  them 
was  a  suit  against  the  State  and  hence  could  not  be  main- 
tained. This  the  United  States  Supreme  Court  held  to  be 
the  case. 

Justice  Harlan,  of  course,  did  not  approve  this  decision 
any  more  than  he  had  approved  that  of  Antoni  v.  Greenhow. 
He  said:  "The  commonwealth  of  Virginia  has  no  more 
authority  to  enact  statutes  impairing  the  obligation  of  her 
contracts  than  statutes  impairing  the  obligation  of  contracts 
exclusively  between  individuals.  ...  A  statute  which  is 
void,  as  impairing  the  obligation  of  the  State's  contract,  af- 
fords no  justification  to  anyone,  and  confers  no  authority. 
If  an  officer  proposes  to  enforce  such  a  statute  against  a 
party,  the  obligation  of  whose  contract  is  sought  to  be  im- 
paired, the  latter,  in  my  judgment,  may  proceed,  by  suit, 
against  such  officer,  and  thereby  obtain  protection  in  his 


IMPAIRMENT  OF  OBLIGATION   OF   CONTRACTS  49 

rights  of  contract,  as  against  the  proposed  action  of  that 
officer.  A  contrary  view  enables  the  State  to  use  her  im- 
munity from  suit  to  effect  what  the  Constitution  of  the 
United  States  forbids  her  from  doing;  namely,  to  enact 
statutes  impairing  the  obligation  of  contracts." 

Another  case  wherein  Justice  Harlan  differed  from  the 
court  in  its  interpretation  of  the  contract  clause  in  the 
Constitution  of  the  United  States  is  that  of  Louisiana  v. 
Mayor,  etc.,  of  New  Orleans,  109  U.  S.  285.  This  case  was 
long  and  much  involved.  It  will  be  treated  again  under  due 
process  of  law,  but  the  matter  of  contract  was  discussed  by 
both  Justice  Harlan  and  the  court. 

The  State  of  Louisiana  had  passed  a  law  making  the 
county  or  town  in  which  property  had  been  destroyed  by 
mob  violence  responsible  for  the  value  of  such  property  de- 
stroyed. The  State  had  by  a  later  statute  forbidden  cities 
to  levy  taxes  above  a  certain  percentage.  Private  property 
of  a  considerable  amount  had  been  destroyed  in  New  Or- 
leans by  mob  violence.  The  party  whose  property  had  been 
destroyed  brought  suit  against  the  city  of  New  Orleans 
for  the  value  of  the  property  destroyed,  and  obtained  judg- 
ment for  the  amount.  The  city  refused  to  pay  the  judg- 
ment, asserting  that  within  the  bounds  of  the  percentage  al- 
lowed under  the  subsequent  statute  of  the  State  she  had  col- 
lected all  the  money  collectable  and  had  no  funds  with 
which  to  pay  the  judgment.  The  question  was,  did  the  sub- 
sequent law  of  Louisiana,  which  held  the  city  within  certain 
limits  in  making  assessments,  amount  to  an  impairment  of 
the  obligation  of  contracts,  in  that  it  deprived  citizens  of 
what  had  been  guaranteed  to  them  by  the  previous  law? 
The  court  said  that  it  did  not,  but  Justice  Harlan  said  that 
it  did.  His  contention,  however,  was  more  vigorous  on 
the  point  of  due  process  of  law  than  on  that  of  contract, 
although  the  court  dwelt  mainly  upon  the  contract  feature. 
It  must  be  admitted  that  this  would  have  been  a  rather  far- 
fetched interpretation  of  the  word  contract.  But  here,  as 
in  the  above  cases,  Justice  Harlan  seemed  to  feel  that  the 


50       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

city  was,  by  means  of  a  technicality,  slipping  out  of  an  ob- 
ligation imposed  upon  it  by  the  State.  This  sort  of  dis- 
honesty always  aroused  his  indignation. 

Of  the  general  ability  of  a  State  to  impair  contract  clauses 
in  charters  seemingly  permanent  in  their  scope  there  is  one 
very  interesting  case,  Stone  v.  Farmers'  Loan  and  Trust 
Co.,  ii6  U.  S.  307.  It  was  brought  from  the  United  States 
circuit  court  for  the  southern  district  of  Mississippi  in  order 
to  test  the  vaHdity  of  a  state  statute  establishing  a  railroad 
commission  to  examine  and  pass  upon  tariffs  and  other  rail- 
road regulations.  In  chartering  the  railroad  company  the 
State  of  Mississippi  embodied  the  following  stipulation  in 
its  charter:  "That  the  president  and  directors  be  and  they 
are  hereby  authorized  to  adopt  and  establish  such  a  tariff  of 
charges  for  the  transportation  of  persons  and  property  as 
they  may  think  proper,  and  the  same  to  alter  and  change  at 
pleasure."  The  contention  of  the  railroad  company  was 
that  the  statute  establishing  a  commission  to  regulate  the 
tariffs  was  an  impairment  of  the  obligation  of  contracts  in 
that  it  took  from  the  company  the  power  granted  in  the  orig- 
inal charter  to  fix  its  own  rates. 

The  import  of  the  decision  amounted  to  this:  The  fact 
that  the  railroad  company  had  been  granted  the  right  to  fix 
rates  did  not  imply  that  the  State  might  not  also  exercise 
that  power.  Since  the  State  was  not  forbidden  by  the  con- 
tract to  fix  rates,  the  establishment  of  a  commission  for 
that  purpose  did  not  impair  the  obligation  of  contracts. 
It  implied  that  though  the  company  might  fix  any  rate  it 
pleased,  the  commission  could  also  do  so,  and  that  the  latter 
rate  was  the  only  one  that  could  be  enforced  in  the  courts. 
Justice  Harlan  thought  differently.  He  contended  that 
the  statute  in  question  did  constitute  an  impairment  of  the 
obligation  of  contracts  and  was  void.  He  held,  however, 
that  the  railroad  company  could  not  establish  any  rate  it 
pleased  to  establish,  but  that  rates  established  by  the  rail- 
road company  should  hold  unless  declared  unreasonable  by 


IMPAIRMENT   OF   OBLIGATION   OF   CONTRACTS  5  I 

some  competent  court.  He  said:  "I  am  of  opinion  that 
this  statute  impairs  the  obligation  of  the  contract  which  the 
State  made  with  these  companies,  in  this :  that  it  takes  from 
each  of  them  the  power  conferred  by  its  charter,  of  fixing 
and  regulating  rates  for  transportation  within  the  limit  of 
reasonableness;  and  confers  upon  a  commission  authority 
to  establish,  from  time  to  time,  such  rates  as  will  give  a  fair 
and  just  return  on  the  value  of  such  railroad,  its  appur- 
tenances and  equipments,  and  as  experience  and  business 
operations  may  show  to  be  just.  In  short,  the  companies 
are  placed  by  the  statute  in  the  same  condition  they  would 
occupy  if  their  charter  had  not  conferred  upon  them  the 
power  to  fix  and  regulate  rates  for  transportation.  The 
whole  subject  of  transportation  rates  is  thus  remitted  to  the 
judgment  of  commissioners  who  have  no  pecuniary  interest 
whatever  in  the  management  of  these  vast  properties,  and 
who,  if  they  had  any  such  interest,  would  be  disqualified 
under  the  statute  from  serving ;  and  who  are  required  to  fix 
rates,  according  to  the  value  of  the  property,  without  any 
reference  to  what  it  originally  cost  or  what  it  had  cost  it 
maintain  it  in  fit  condition  for  public  use.  .  .  . 

"  In  expressing  the  foregoing  views  I  would  not  be  under- 
stood as  denying  the  power  of  the  State  to  establish  a  Rail- 
road Commission,  or  to  enforce  regulations  (not  inconsistent 
with  the  essential  charter  rights  of  the  companies)  in  ref- 
erence to  the  general  conduct  of  their  merely  local  business. 
My  only  purpose  is  to  express  the  conviction  that  each  of 
these  companies  has  a  contract  with  the  State,  whereby  it 
is  exempted  from  absolute  legislative  control  as  to  rates, 
and  under  which  it  may,  through  its  directors,  from  time 
to  time,  within  the  limit  of  reasonableness,  establish  such 
rates  of  toll  for  the  transportation  of  persons  and  property 
as  they  deem  proper ;  such  rates  to  be  respected  by  the  courts 
and  by  the  public,  unless  they  are  shown  affirmatively  to  be 
unreasonable." 

Justice  Harlan's  contention  in  this  case  is  not  incon- 
sistent, as  may  be  thought,  with  some  of  his  later  dissents 


52       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

regarding  the  power  of  the  Interstate  Commerce  Commis- 
sion. He  impliedly  recognized  here  that  the  State  may  es- 
tablish a  commission  of  this  kind  without  unconstitutional 
delegation  of  the  legislative  power,  an  assertion  which  he 
made  more  vigorously  in  his  dissent  from  Interstate  Com- 
merce Commission  v.  Alabama  Midland  R.  Co.,  i68  U.  S. 
144.  Neither  was  his  doctrine  as  inexpedient  as  might  be 
thought.  He  wished  to  have  the  State  keep  its  word,  and 
at  the  same  time  give  the  railroads  to  understand  that  their 
rates  must  be  in  accordance  with  reason.  Yet  it  must  be 
admitted  that  from  the  point  of  view  of  facility  in  the  regu- 
lation of  railroad  rates  the  decision  of  the  court  was  wiser.^ 

From  the  cases  discussed  may  be  deduced  Justice  Harlan's 
doctrine  regarding  the  relation  of  a  State  to  its  own  con- 
tract. It  was  merely  this :  that  a  State  could,  constitution- 
ally, no  more  impair  its  own  contracts  than  it  could  impair 
any  other  contracts ;  and  that  necessary  proceedings  should 
have  been  taken  to  prevent  the  States  from  impairing  their 
own  contracts. 

Relation  of  the  National  Government  to  its  Contracts. — 
As  is  well  known,  there  is  no  constitutional  limitation  di- 
rectly forbidding  the  United  States  to  pass  laws  impairing 
the  obligation  of  contracts.  Though  the  national  govern- 
ment has  not  been  very  careful  not  to  impair  the  obligation 
of  contracts,  yet,  when  suits  have  been  brought  on  this  ques- 
tion, the  court  has  argued  that  the  action  was  not  an  impair- 
ment. 

Justice  Harlan  held  that,  though  there  was  no  express 
statement  to  that  effect  in  the  Constitution,  the  stipulations 

iWith  regard  to  land  grants  there  is  one  case,  and  in  that  the 
difference  was  rather  technical,  involving  the  interpretation  of  the 
meaning  of  the  terms  of  the  contract.  This  was  the  case  of  Walsh 
V.  Preston,  109  U.  S.  297.  The  court  decided  that  if  a  State  grants 
land  on  contract,  and  if  within  good  time  the  party  to  whom  the 
land  was  granted  cannot  show  that  he  has  complied  with  the  con- 
tract, the  land  is  subject  to  regrantal.  Justice  Harlan  differed  from 
the  court  in  that  he  contended  that  the  party  to  whom  the  land  was 
granted  had  given  sufficient  evidence  of  having  complied  with  his 
part  of  the  contract,  and  that  the  State  had  impaired  the  obligation 
of  its  contract  in  regranting  any  part  of  the  land. 


IMPAIRMENT   OF   OBLIGATION   OF   CONTRACTS  53 

that  property  should  not  be  taken  without  due  process  of 
law,  and  particularly  that  private  property  should  not  be 
taken  without  just  compensation,  implied  that  the  obligation 
of  contracts  could  not  be  impaired.  This  question  came 
up  particularly  in  the  cases  involving  the  rights  of  paten- 
tees. There  are  three  cases  of  special  interest :  SchilHnger 
V.  United  States,  155  U.  S.  163;  Belknap  v.  Schild,  161  U. 
S.  10;  and  International  Postal  Supply  Co.  v.  Bruce,  194  U. 
S.  601.  These  have  been  alluded  to  in  the  preceding  chap- 
ter, but  may  be  considered  here  in  their  relation  to  contracts. 

The  first  of  these  cases  came  before  the  Supreme  Court 
on  the  plea  that  a  paving  company,  employed  by  the  gov- 
ernment at  Washington,  had  used  a  patented  process  in 
employing  tarred  paper  to  keep  cement  blocks  apart,  and 
had  thus  impaired  an  implied  contract  right  of  the  patentee 
to  the  exclusive  use  of  his  patented  invention.  The  court 
decided  that  this  use  did  not  constitute  an  impairment  of 
the  obligation  of  contracts  and  that  it  was  not  a  contract  re- 
lation, but  that  the  injury  alleged  was  in  the  nature  of  a 
tort,  and  no  action  could  be  had  against  the  United  States 
for  it.  "  So  not  only  does  the  petition  count  upon  a  tort, 
but  also  the  findings  show  a  tort.  That  is  the  essential  fact 
underlying  the  transaction  and  upon  which  rests  every  pre- 
tense of  a  right  to  recover.  There  was  no  suggestion  of  a 
waiver  of  the  tort  or  a  pretence  of  any  implied  contract 
until  after  the  decision  of  the  Court  of  Claims  that  it  had 
no  jurisdiction  over  an  action  to  recover  for  the  tort." 

Justice  Harlan,  however,  thought  otherwise.  With  him, 
the  United  States  government,  in  granting  patents,  formed 
contracts  which  it  could  not  impair  any  more  than  could  a 
state  impair  the  obligation  of  its  contracts.  Some  quota- 
tions will  illustrate  this  point.  "  It  may,theref  ore,be  regarded 
as  settled  that  the  government  may  be  sued  in  the  Court  of 
Claims,  as  upon  implied  contract,  not  only  for  the  value  of 
specific  property  taken  for  public  use  by  an  officer  acting 
under  the  authority  of  the  government,  even  if  the  taking 
was  originally  without  the  consent  of  the  owner  and  without 


54       CONSTITUTIONAL  DOCTRINES   OF  JUSTICE   HARLAN 

legal  proceedings  for  condemnation,  but  for  the  value  of  the 
use  of  a  patented  invention  when  such  use  was  with  the  con- 
sent of  the  patentee.  .  .  . 

"If  Schillinger's  patent  was  valid,  then  the  government 
is  bound  by  an  obligation  of  the  highest  character  to  com- 
pensate him  for  the  use  of  his  invention,  and  its  use  by  the 
government  cannot  be  said  to  arise  out  of  mere  tort,  at  least 
when  its  representative  did  not  himself  dispute,  nor  assume 
to  decide,  the  validity  of  the  patent.  If  the  Act  of  Congress 
under  which  the  architect  proceeded  had,  in  express  terms, 
directed  him  to  use  Schillinger's  invention  in  any  pavement 
laid  down  in  the  public  grounds,  then  such  use,  according 
to  the  decision  in  United  States  v.  Great  Falls  Mfg.  Co., 
would  have  made  a  case  of  implied  contract  based  on  the 
constitutional  obligation  to  make  just  compensation  for 
private  property  taken  for  public  use.  But  such  a  case  is 
not  distinguishable,  in  principle,  from  the  present  one,  where 
the  architect,  proceeding  under  a  general  authority  to  ex- 
pend the  public  money  according  to  specified  plans,  uses 
or  knowingly  permits  to  be  used  a  particular  patented  in- 
vention, not  disputing  the  rights  of  the  patentee,  but  leav- 
ing the  question  of  the  validity  of  the  patent,  and  the  conse- 
quent liability  of  the  government  for  its  use,  to  judicial  de- 
termination." 

The  case  of  Belknap  v.  Schild  was  sufficiently  explained 
in  the  chapter  on  suability  of  States.  In  his  dissent  from 
this  case  Justice  Harlan  reiterated  his  arguments  in  Schil- 
linger  v.  United  States,  but  somewhat  more  vehemently: 
"If  the  United  States  may  appropriate  to  public  use  the 
invention  of  a  patentee,  without  his  consent,  and  without 
liability  to  suit,  as  upon  implied  contract,  for  the  value  of 
the  use  of  such  invention;  if,  as  the  court  holds,  a  public 
officer  acting  only  in  the  interest  of  the  public  is  not  indi- 
vidually liable  for  gains,  profits,  and  advantages  that  may 
accrue  to  the  United  States  from  such  use ;  and  if  the  officer 
who  thus  violates  the  rights  of  the  patentee  cannot  be  re- 
strained by  injunction, — then  the  government  may  well  be 


IMPAIRMENT   OF   OBLIGATION    OF   CONTRACTS  55 

regarded  as  organized  robbery  so  far  as  the  rights  of  paten- 
tees are  concerned." 

The  details  of  the  case  of  the  International  Postal  Supply 
Co.  V.  Bruce  have  also  been  sufficiently  explained.  Here 
Justice  Harlan,  more  vigorously  than  ever,  reasserted  the 
convictions  expressed  in  the  former  dissents:  "It  is  now 
adjudged  that,  although  a  postmaster  may  be  confessedly 
proceeding  in  direct  violation  of  the  legal  rights  of  the  pat- 
entee, the  court  cannot,  by  any  direct  process,  stop  him  in 
his  destruction  of  the  patentee's  right  of  property.  Under 
the  present  decision,  the  Postoffice  Department  not  only 
may  use,  without  compensation,  the  particular  postmarking 
machines  in  question  here,  but  it  can  lease  others,  and  con- 
tinue its  violation  of  the  patentee's  rights  at  its  discretion, 
thereby  making  the  exclusive  use  granted  by  the  patent  of 
no  value  whatever." 

From  these  opinions  it  is  seen  that,  though  there  is  no 
express  prohibition  upon  the  United  States  forbidding  the 
impairment  of  the  obligation  of  contracts,  yet,  according  to 
Justice  Harlan's  doctrine,  the  prohibitions  as  to  taking  pri- 
vate property  without  just  compensation  and  without  due 
process  of  law  would  have  worked  to  that  end.  But  his 
doctrine  did  not  prevail,  and  as  the  decisions  now  stand,  the 
United  States  may  impair  the  obligation  of  what  in  sub- 
stance would  appear  to  be  contracts. 

The  Relation  of  a  Foreign  Government  to  Contracts. — 
Justice  Harlan  held  also  that  a  foreign  government  could 
not  pass  laws  which  the  United  States  need  recognize  by  in- 
ternational comity.  This  theory  is  brought  out  in  his  dis- 
sent in  Canada  Southern  R.  Co.  v.  Gebhard,  109  U.  S.  527. 
A  railroad  company  chartered  in  Canada  had,  in  1871,  made 
a  bond  issue  which  was  to  pay  seven  per  cent  interest,  to  be 
collected  in  New  York,  the  bonds  to  mature  in  1906.  In 
1873  the  company  found  it  impossible  to  pay  the  interest 
on  the  coupons,  and  made  a  new  issue  of  bonds,  stipulating 
that  the  principal  and  interest  should  be  paid  within  a  short 
time,  also  in  New  York,  thus  making  possible  the  payment 


56        CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

of  interest  on  the  coupons  of  the  former  issue.  Upon  the 
maturity  of  the  second  bond  issue  the  company  was  unable 
to  meet  its  obligations.  To  remedy  the  situation  the  Par- 
liament of  Canada  passed  a  statute  providing  for  the  sur- 
render of  the  old  bonds,  bearing  seven  per  cent  interest,  and 
the  substitution  of  other  bonds,  maturing  at  a  later  date, 
and  bearing  a  less  rate  of  interest.  The  case  was  fought  out 
in  the  United  States  circuit  court,  where  the  decision  was 
that  such  a  statute  was  an  impairment  of  the  obligation 
of  contracts,  and  a  judgment  was  issued  against  the  railroad 
company.  Upon  appeal  to  the  Supreme  Court,  the  deci- 
sion of  the  lower  court  was  reversed.  The  reasons  for  the 
decree  of  the  court  were  these :  In  the  first  place,  the  statute 
of  Canada  was  in  the  nature  of  bankruptcy  or  foreclosure 
proceedings,  and  was  not  different  in  purpose  from  similar 
proceedings  here;  and,  in  the  second  place,  international 
comity  made  it  necessary  that  the  United  States  recognize 
the  validity  of  the  act  of  the  Canadian  Parliament. 

Neither  of  these  contentions  met  with  Justice  Harlan's  ap- 
proval. He  claimed  that  the  proceeding  was  significantly 
different  from  bankruptcy  or  foreclosure  proceedings  in  that 
the  creditors  had  not  been  allowed  their  day  in  court.  "  It 
is  unlike  a  composition  in  bankruptcy  in  this :  that  whereas 
a  composition  is  never  had  except  upon  notice,  so  that  credi- 
tors may  have  their  day  in  court,  with  opportunity  to  show 
that  the  proposed  composition  should  not  be  made,  here,  no 
such  opportunity  was  given  to  the  holders  of  this  company's 
bonds,  in  any  court  or  other  tribunal,  to  show  that  the  ar- 
rangement which  the  Canadian  Parliament  sanctioned  ought 
not,  in  justice,  to  be  made;  but  the  arrangement  was,  by 
legislative  enactment,  made  absolutely  binding  upon  every 
bondholder  and  stockholder,  even  those  who  are  citizens  of 
other  countries."  To  the  second  contention  he  objected  that 
it  was  not  fair  to  allow  Canada  to  deny  to  American  citizens 
what  the  American  government  could  deny  neither  to  them 
nor  to  citizens  of  Canada.     "  In  this  country,  no  State  can 


IMPAIRMENT  OF  OBLIGATION   OF   CONTRACTS  5/ 

pass  any  law  impairing  the  obligation  of  contracts;  the 
Constitution  of  the  United  States  forbids  such  legislation. 
And  the  principle  is  founded  in  justice,  independently  of  this 
constitutional  provision.  ...  A  citizen  of  Canada,  or  even 
a  railway  corporation  of  that  Dominion,  could  have  the 
benefit,  in  our  courts,  of  the  constitutional  inhibition  upon 
state  laws  impairing  the  obHgation  of  contracts." 

The  conclusion  is  as  follows :  "  As  I  do  not  think  that  a 
foreign  railway  corporation  is  entitled,  upon  principles  of 
international  comity,  to  have  the  benefit,  in  our  courts — to 
the  prejudice  of  our  own  people  and  in  violation  of  their 
contract  and  property  rights — of  a  foreign  statute  which 
could  not  be  sustained  had  it  been  enacted  by  Congress  or 
by  any  one  of  the  United  States,  with  reference  to  the  ne- 
gotiable securities  of  an  American  railway  corporation ;  and 
as  I  do  not  agree  that  an  American  court  should  accord  to  a 
foreign  railway  corporation  the  privilege  of  repudiating  its 
contract  obligations  to  American  citizens,  when  it  must  deny 
any  such  privilege,  under  like  circumstances,  to  our  own 
railway  corporations,  I  dissent  from  the  opinion  and  judg- 
ment of  the  court." 

It  is  seen,  therefore,  that  according  to  Justice  Harlan's 
doctrine  the  United  States  need  not  recognize  that  a  foreign 
government  has  any  more  right  to  pass  laws  impairing  the 
obligation  of  contracts  of  American  citizens  than  has  the 
home  government. 

To  sum  up  Justice  Harlan's  doctrine  of  the  obligation  of 
contracts :  He  believed  that  the  enforcement  of  valid  con- 
tracts was  a  right  to  which  all  people  were  entitled  and  that 
the  right  lay  deeper  than  any  express  command  or  limitation, 
being  founded  in  abstract  justice.  Holding  this  view,  he 
would  not  give  his  assent  to  any  state  law  that  impaired 
the  obligation  of  contracts,  and  he  thought  that  the  neces- 
sary proceedings  should  always  have  been  taken  to  prevent 
any  impairment  of  state  contracts,  whether  in  regard  to  the 
State's  own  contracts  or  those  of  private  citizens.  More- 
over, he  contended  with  equal  vigor  that  there  was  just  as 


58        CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

sacred  a  duty  on  the  part  of  the  United  States  not  to  im- 
pair in  any  way  the  obligation  of  legal  contracts.  Further- 
more, he  thought  that  the  courts  of  the  United  States  should 
always  pronounce  against  the  recognition  of  the  right  of  any 
foreign  government  to  impair  contracts  of  the  citizens  of 
the  United  States,  in  the  same  .way  in  which  they  would  or 
should  oppose  such  impairment  here. 


CHAPTER  III 
Due  Process  of  Law 

Just  as  it  is  practically  impossible  to  get  an  exact  and 
final  definition  of  the  expression  "  due  process  of  law  "  to 
fit  the  general  study  of  constitutional  law,  so  it  is  difficult 
to  state  positively  what  any  one  person  has  conceived  it  to 
be.  Justice  Harlan  has  in  several  places  set  forth  decided 
opinions  as  to  this  conception.  As  he  was  inclined  to  be 
strongly  nationalistic  in  his  tendencies,  one  would  suppose 
that  he  would  have  wanted  to  give  it  a  broader  interpreta- 
tion than  the  court  as  a  whole  has  found  it  fitting  to  do. 
This,  however,  is  not  entirely  true.  In  some  respects  he 
did  wish  to  make  the  meaning  broader  than  the  court  had 
decided,  but  in  the  majority  of  cases  his  view  was  a  more 
limited  one. 

Before  taking  up  the  various  instances  in  which  he  has 
differed  from  the  court  and  in  which  his  decided  convic- 
tions on  this  subject  will  be  in  the  foreground,  some  quo- 
tations illustrative  of  his  general  doctrine  will  be  given. 

In  his  dissent  from  Hurtado  v.  California,  no  U.  S.  516, 
he  gives  the  following  quotation  from  a  former  decision^  as 
expressing  his  opinion :  "  The  Constitution  contains  no  de- 
scription of  those  processes  which  it  was  intended  to  allow 
or  forbid.  It  does  not  even  declare  what  principles  are  to 
be  applied  to  ascertain  whether  it  be  due  process.  It  is 
manifest  that  it  was  not  left  to  the  legislative  power  to 
enact  any  process  which  might  be  devised.  The  article  is  a 
restraint  on  the  legislative  as  well  as  on  the  executive  and 
judicial  powers  of  the  government,  and  cannot  be  so  con- 
strued as  to  leave  Congress  free  to  make  any  process  '  due 
process  of  law '  by  its  mere  will.     To  what  principles  are 

1  Murray  v.  Land  and  Improvement  Co.,  18  How.  272. 

59 


6o       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

we  to  resort  to  ascertain  whether  this  process  enacted  by 
Congress  is  due  process?  To  this  the  answer  must  be 
twofold.  We  must  examine  the  Constitution  itself  to  see 
whether  this  process  be  in  conflict  with  any  of  its  provisions. 
If  not  found  to  be  so,  we  must  look  to  those  settled  usages 
and  modes  of  proceeding  existing  in  the  common  and  stat- 
ute law  of  England  before  the  emigration  of  our  ancestors, 
and  zvhich  are  shown  not  to  have  been  unsuited  to  their 
civil  and  political  condition  by  having  been  acted  on  by  them 
after  the  settlement  of  this  country.'' 

According  to  this  opinion,  to  ascertain  whether  any  legis- 
lation or  any  governmental  act  of  any  kind  is  contrary  to 
the  prohibition  in  the  Constitution  as  to  due  process  of  law, 
two  questions  must  be  asked :  First,  is  there  any  other  pro- 
vision in  the  Constitution  which  forbids  it?  If  so,  it  is,  of 
course,  not  due  process  of  law.  Secondly,  do  the  customs 
and  practices  of  English  law  forbid?  If  so,  it  is  not  due 
process.  Though  the  first  criterion  is  definite,  the  second 
may  give  rise  to  much  dispute.  According  to  Justice  Har- 
lan, however,  these  criteria  furnish  safe  guides  in  ascer- 
taining whether  any  act  is  constitutional  within  the  meaning 
of  that  clause  of  the  fourteenth  amendment. 

A  quotation  from  Justice  Harlan's  dissent  in  the  Hurtado 
case  will  show  his  position :  " '  Due  process  of  law,'  within 
the  meaning  of  the  national  constitution,  does  not  import 
one  thing  with  reference  to  the  powers  of  the  States,  and 
another  with  reference  to  the  powers  of  the  general  gov- 
ernment. If  particular  proceedings  conducted  under  the 
authority  of  the  general  government,  and  involving  life, 
are  prohibited,  because  not  constituting  that  due  process  of 
law  required  by  the  5th  Amendment  of  the  Constitution 
of  the  United  States,  similar  proceedings,  conducted  under 
the  authority  of  a  State,  must  be  deemed  illegal  as  not  being 
due  process  of  law  within  the  meaning  of  the  14th  Amend- 
ment." As  will  be  shown  presently,  the  court  has  not  held 
to  this  view.  But  it  is  a  strange  sort  of  interpretation, 
according  to  Justice  Harlan,  which  explains  due  process 


DUE   PROCESS   OF  LAW  6 1 

differently  for  two  different  spheres  of  government  under 
the  same  constitution. 

Another  quotation,  from  Justice  Harlan's  dissent  from 
Taylor  v.  Beckham,  178  U.  S.  548,  will  be  appropriate  here: 
"  The  liberty  of  which  the  14th  Amendment  forbids  a  state 
from  depriving  anyone  without  due  process  of  law  is  some- 
thing more  than  freedom  from  the  enslavement  of  the 
body  or  from  physical  restraint.  In  my  judgment  the 
words  'life,  liberty,  or  property'  in  the  14th  Amendment 
should  be  interpreted  as  embracing  every  right  that  may  be 
brought  within  judicial  cognizance,  and  therefore  no  right 
of  that  kind  can  be  taken  in  violation  of  '  due  process  of 
law.' " 

Life  and  Liberty. — The  question  of  deprivation  of  life  or 
liberty  without  due  process  of  law  involves  mainly  the  mat- 
ter of  criminal  procedure.  In  fact,  Justice  Harlan's  doc- 
trine appears  most  clearly  in  his  dissents  from  cases  involv- 
ing trial  by  jury, — cases  in  which  trial  by  jury  has  been 
limited.  The  first  and  chief  case  on  this  subject  was  that 
of  Hurtado  v.  California,  no  U.  S.  516. 

This  case  involved  an  indictment  without  grand  jury  of  a 
person  who  was  accused  of  murder.  The  case  was  taken  to 
the  Supmere  Court  of  the  United  States,  on  the  ground  that 
the  statute  of  California  which  allowed  such  a  procedure 
was  unconstitutional  in  that  it  deprived  the  criminal  of  his 
life  without  due  process  of  law.  The  question  for  the  court 
to  decide,  then,  was  whether  denial  of  indictment  by  grand 
jury  constituted  a  denial  of  due  process  of  law. 

The  decision  in  this  case  was  delivered  by  Justice  Mat- 
thews, and  his  arguments  may  be  summarized  as  follows : 
(i)  Referring  to  the  test  for  due  process  of  law  as  given 
in  Murray  v.  Land  and  Improvement  Co.,  quoted  above,  he 
said  that  this  is  not  the  only  test  for  due  process  of  law. 
"  This,  it  is  argued,  furnishes  an  indispensable  test  of  what 
constitutes  '  due  process  of  law ' ;  that  any  proceeding  other- 
wise authorized  by  law,  which  is  not  thus  sanctioned  by 
usage,  or  which  supersedes  and  displaces  one  that  is,  can- 
not be  regarded  as  due  process  of  law. 
5 


62        CONSTITUTIONAL  DOCTRINES   OF   JUSTICE    HARLAN 

"  But  this  inference  is  unwarranted.  The  real  syllabus 
of  the  passage  quoted  is,  that  a  process  of  law,  which  is  not 
otherwise  forbidden,  must  be  taken  to  be  due  process  of  law, 
if  it  can  show  the  sanction  of  settled  usage  both  in  England 
and  in  this  country ;  but  it  by  no  means  follows,  that  nothing 
else  can  be  due  process  of  law.  The  point  in  the  case  cited 
arose  in  reference  to  a  summary  proceeding,  questioned  on 
that  account,  as  not  due  process  of  law.  .  .  .  But  to  hold 
that  such  a  characteristic  is  essential  to  due  process  of  law, 
would  be  to  deny  every  quality  of  the  law  but  its  age,  and 
to  render  it  incapable  of  progress  or  improvement.  It 
would  be  to  stamp  upon  our  jurisprudence  the  unchange- 
ableness  attributed  to  the  laws  of  the  Medes  and  Persians." 
This  declaration  is  reenforced  with  the  statement  that  such 
a  principle  might  require  trial  by  ordeal.  (2)  Since  the 
words  "  due  process  of  law  "  were  used  in  the  fifth  amend- 
ment in  connection  with  the  constitutional  guarantee  of  trial 
by  jury,  and  in  the  fourteenth  without  this  guarantee,  it 
may  be  taken  that  this  omission  gives  room  for  allowing  the 
States  to  abandon  jury  trials.  "If  in  the  adoption  of  that 
Amendment  it  had  been  part  of  its  purpose  to  perpetuate 
the  institution  of  the  grand  jury  in  all  the  States,  it  would 
have  embodied,  as  did  the  5th  Amendment,  express  dec- 
larations to  that  effect.  Due  process  of  law  in  the  latter 
refers  to  that  law  of  the  land,  which  derives  its  authority 
from  the  legislative  powers  conferred  upon  Congress  by  the 
Constitution  of  the  United  States,  exercised  within  the 
limits  therein  prescribed,  and  interpreted  according  to  the 
principles  of  the  common  law.  In  the  14th  Amendment, 
by  parity  of  reason,  it  refers  to  that  law  of  the  land  in  each 
State,  which  derives  its  authority  from  the  inherent  and 
reserved  powers  of  the  State,  exerted  within  the  limits  of 
those  fundamental  principles  of  Hberty  and  justice  which 
lie  at  the  base  of  all  our  civil  and  political  institutions,  and 
the  greatest  security  for  which  resides  in  the  right  of  the 
people  to  make  their  own  laws,  and  alter  them  at  their 
pleasure." 


DUE   PROCESS   OF   LAW  63 

It  is  seen  that  the  contention  of  the  court  was  that  the 
institution  in  cases  of  felonies  of  a  procedure  other  than 
jury  trial  did  not  abridge  a  right  guaranteed  by  the  Consti- 
tution because,  in  the  first  place,  due  process  of  law  might 
mean  more  than  had  been  previously  recognized  as  proper 
procedure,  otherwise  progress  in  criminal  procedure  would 
be  thwarted.  In  the  second  place,  since  the  provision  re- 
garding due  process  of  law  as  given  in  the  fourteenth 
amendment  was  inserted  without  a  special  stipulation  re- 
garding jury  trial,  it  could  not  be  taken  to  mean  that  trial 
by  jury  was  necessary.  Then  follows  this  definition  of 
due  process  of  law :  "  It  follows  that  any  legal  proceeding 
enforced  by  public  authority,  whether  sanctioned  by  age 
and  custom,  or  newly  devised  in  the  discretion  of  the  legis- 
lative power,  in  furtherance  of  the  general  public  good, 
which  regards  and  preserves  these  principles  of  liberty  and 
justice,  must  be  held  to  be  due  process  of  law." 

These  contentions  did  not  meet  Justice  Harlan's  approval. 
In  answer  to  the  first  argument  of  the  court  he  showed 
that  usage  and  custom  both  in  England  and  in  the  United 
States  required  that  criminal  cases  be  tried  only  by  a  jury. 
In  addition  to  the  fact  that  this  requirement  had  been  made 
in  the  Constitution  of  the  United  States,  it  had  been  made 
in  the  constitution  of  practically  every  State.  A  custom 
which  had  received  such  sanction  was  not  to  be  lightly 
brushed  aside  as  a  relic  of  barbarism.  In  other  words,  it 
was  so  predominant  a  characteristic  as  to  require  a  consti- 
tutional amendment  before  it  could  be  done  away  with 
anywhere  in  the  United  States. 

In  answer  to  the  second  contention  of  the  court  the  fol- 
lowing argument  was  made  by  Justice  Harlan :  "  This  line 
of  argument,  it  seems  to  me,  would  lead  to  results  which 
are  inconsistent  with  the  vital  principles  of  republican  gov- 
ernment. If  the  presence  in  the  5th  Amendment  of  a  spe- 
cific provision  for  grand  juries  in  capital  cases,  alongside 
the  provision  for  due  process  of  law  in  proceedings  involv- 
ing life,  liberty  or  property,  is  held  to  prove  that  due  process 


64       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

of  law  did  not,  in  the  judgment  of  the  framers  of  the  Con- 
stitution, necessarily  require  a  grand  jury  in  capital  cases, 
inexorable  logic  would  require  it  to  be,  likewise,  held  that 
the  right  not  to  be  put  twice  in  jeopardy  of  life  and  limb 
for  the  same  offense,  nor  compelled  in  a  criminal  case  to 
testify  against  one's  self  (rights  and  immunities  also  spe- 
cifically recognized  in  the  5th  Amendment)  were  not  pro- 
tected by  that  due  process  of  law  required  by  the  settled 
usages  and  proceedings  existing  under  the  common  and 
statute  law  of  England  at  the  settlement  of  this  country. 
More  than  that,  other  Amendments  of  the  Constitution  pro- 
posed at  the  same  time,  expressly  recognize  the  right  of 
persons  to  just  compensation  for  private  property  taken  for 
public  use;  their  right,  when  accused  of  crime,  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation  against 
them,  and  to  a  speedy  and  public  trial,  by  an  impartial  jury 
of  the  State  and  district  wherein  the  crime  was  committed ; 
to  be  confronted  by  the  witnesses  against  them;,  and  to 
have  compulsory  process  for  obtaining  witnesses  in  their 
favor.  ...  If  the  argument  of  my  brethren  be  sound,  those 
rights  (although  universally  recognized  at  the  establish- 
ment of  our  institutions  as  secured  by  that  due  process  of 
law  which  for  centuries  had  been  the  foundation  of  Anglo- 
Saxon  liberty)  were  not  deemed  by  our  fathers  as  essential 
in  the  due  process  of  law  prescribed  by  our  Constitution; 
because — such  seems  to  be  the  argument — had  they  been 
regarded  as  involved  in  due  process  of  law,  they  would  not 
have  been  specifically  and  expressly  provided  for,  but  left 
to  the  protection  given  by  the  general  clause  forbidding  the 
deprivation  of  life,  liberty  or  property  without  due  process 
of  law.  .  .  . 

"  So  that  the  court,  in  this  case,  while  conceding  that  the 
requirement  of  due  process  of  law  protects  the  fundamental 
principles  of  liberty  and  justice,  adjudges,  in  effect,  that  an 
immunity  or  right,  recognized  at  the  common  law  to  be 
essential  to  personal  security,  jealously  guarded  by  our 
National  Constitution  against  violation  by  any  tribunal  or 


DUE   PROCESS   OF  LAW  65 

body  exercising  authority  under  the  General  Government, 
and  expressly  or  impliedly  recognized,  when  the  14th 
Amendment  was  adopted,  in  the  Bill  of  Rights  or  Consti- 
tution of  every  State  in  the  Union,  is  yet,  not  a  funda- 
mental principle  in  governments  established,  as  those  of  the 
States  of  the  Union  are,  to  secure  to  the  citizen  liberty  and 
justice  and,  therefore,  is  not  involved  in  that  due  process 
of  law  required  in  proceedings  conducted  under  the  sanc- 
tion of  a  State."2 

The  case  of  Hurtado  v.  California  seems  to  be  the  most 
significant  case  in  which  there  is  an  answer  to  the  question 
as  to  the  relation  of  due  process  of  law  to  trial  by  jury. 
There  is  no  express  constitutional  stipulation  that  a  State 
shall  not  deprive  persons  of  the  right  of  trial  by  jury; 
hence,  if  a  State  does  enact  a  law  which  denies  this  right 
to  its  citizens,  the  only  constitutional  stipulation  under 
which  the  law  may  be  tested  by  the  Supreme  Court  of  the 
United  States  is  that  in  the  fourteenth  amendment  which 
says  that  life,  liberty,  or  property  shall  not  be  denied  by  a 
State  to  any  person  without  due  process  of  law.  When  the 
question  as  to  the  denial  of  the  right  of  trial  by  jury  has 
been  contested  under  the  laws  of  the  United  States  proper, 
the  plaintiffs  have  preferred  to  bring  up  the  cases  under 
the  express  limitation  upon  the  United  States  that  jury 
trial  shall  not  be  denied. 

The  cases  of  Hawaii  v.  Mankichi,  190  U.  S.  197,  and 
Schick  V.  United  States,  195  U.  S.  65,  are  typical  cases  in 
this  connection.  The  first  will  be  discussed  under  the  topic 
of  judicial  legislation^  and  in  the  comments  upon  the  In- 
sular Cases,*  and  may  be  omitted  here.  Although  the  case 
of  Schick  V.  United  States  cannot  be  said  to  bear  directly 
upon  the  question  of  due  process  of  law,  it  can  best  be  dis- 
cussed here  as  illustrative  of  Justice  Harlan's  belief  that 

2  See  Thompson  v.  Utah,  170  U.  S.  343,  where  Justice  Harlan  in 
rendering  the  majority  opinion  stated  that  criminal  procedure  must 
be  by  jury  trial  in  all  territories  of  the  United  States. 

3  See  pages  197-198. 
*  See  pages  185-188. 


66       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

trial  by  jury  is  a  fundamental  doctrine,  and  one  not  to  be 
dealt  with  lightly,  as  the  court  has  at  times  showed  a  tend- 
ency to  do. 

The  question  to  be  settled  in  this  case  was  whether  a  man 
accused  of  crime  could  waive  trial  by  jury.  The  plaintiffs 
in  error  had  been  prosecuted  after  a  trial  by  information  in 
a  district  court  of  the  United  States  for  violation  of  a 
national  law  which  required  that  oleomargarine  should  be 
stamped  in  a  certain  way.  The  court  held  that  since  the 
fine  could  not  exceed  fifty  dollars,  this  was  a  petty  offense, 
and  hence  was  not  meant  to  be  included  within  the  third 
article,  which  states  that  "  the  trial  of  all  crimes,  except  in 
cases  of  impeachment,  shall  be  by  jury."  The  argument 
was  (i)  that  the  clause  did  not  necessarily  embrace 
offenses  like  this  one.  In  support  of  this  assertion  the 
court  went  into  the  history  of  the  clause.  The  fact  that 
the  constitutional  convention  had  changed  the  phrase  "  crim- 
inal procedure  "  to  the  word  "  crimes  "  argued  in  the  mind 
of  the  court  that  the  word  crimes  was  meant  to  embrace 
only  those  of  deeper  significance.  (2)  If  a  man  guilty  of 
murder  may,  by  pleading  guilty  and  throwing  himself  upon 
the  mercy  of  the  court,  do  away  with  trial  by  jury,  why 
could  not  one  informed  against  for  a  petty  offense  waive 
the  trial  by  jury? 

In  dissenting  in  this  case  Justice  Harlan  showed  that  the 
whole  wording  of  the  act  went  to  show  that  all  crimes  were 
meant  to  be  included  within  its  scope,  and  that  history  did 
not  bear  out  any  other  interpretation  of  the  requirement  in 
the  Constitution  that  trial  by  jury  should  be  always  upheld. 
Since,  therefore,  every  consideration  went  to  show  that  the 
charge  in  question  was  a  crime  within  the  meaning  of  both 
the  statute  and  the  Constitution,  the  only  legal  mode  of 
procedure  was  that  of  trial  by  jury.  He  thereupon  pro- 
ceeded to  examine  the  bearing  of  history  on  that  particular 
case,  and  found  that  nothing  in  the  practices  of  English 
law  justified  the  trial  of  such  a  case  in  any  other  way. 

His  answer  to  the  contention  of  the  court  that  the  plain- 


DUE   PROCESS   OF   LAW  6/ 

tiff  had  a  right  to  waive  trial  by  jury  is  well  worth  quoting: 
"  In  this  connection  we  are  confronted  with  the  broad  state- 
ment, found  in  some  adjudged  cases  as  well  as  in  elemen- 
tary treatises,  to  the  effect  that  a  person  is  entitled  to  waive 
any  constitutional  right,  of  whatever  nature,  that  he  pos- 
sesses, and  thereby  preclude  himself  from  invoking  the 
authority  of  the  Constitution  for  the  protection  or  enforce- 
ment of  that  right.  It  is  suggested  that  even  when  charged 
with  murder  he  may  plead  guilty,  and  that  the  court  there- 
upon, without  the  intervention  of  a  jury,  may  pronounce 
such  judgment  as  the  law  permits  or  authorizes.  And  it  is 
confidently  asked  by  those  who  make  that  suggestion.  Why 
may  not  one  charged  with  a  misdemeanor,  and  pleading  not 
guilty,  waive  a  jury  altogether,  and  consent  to  be  tried  by 
the  court?  This  argument  will  not  stand  the  test  of  reason. 
It  proceeds  upon  the  ground  that  jurisdiction  to  try  a  crim- 
inal case  may  be  given  by  consent  of  the  accused  and  the 
prosecutor.  But  such  consent  could  have  no  legal  efficacy. 
Undoubtedly  one  accused  of  murder  may  plead  guilty.  But 
in  doing  so  he  renders  a  trial  unnecessary.  The  Constitu- 
tion does  not  prohibit  an  accused  from  pleading  guilty. 
His  right  to  do  so  was  recognized  long  before  the  adoption 
of  that  instrument;  and  it  was  never  supposed  that  such  a 
plea  impaired  the  force  of  the  requirement  that  a  trial  for 
crime,  under  a  plea  of  not  guilty,  shall  be  by  jury.  It  is  not 
to  be  assumed  that  the  Constitution  intended,  when  pre- 
serving the  right  of  trial  by  jury,  to  change  any  essential 
rule  of  criminal  practice  established  at  the  common  law, 
before  the  adoption  of  the  instrument.  When  the  accused 
pleads  guilty  before  a  lawful  tribunal  he  admits  every  ma- 
terial fact  well  averred  in  the  indictment  or  information, 
and  there  is  no  issue  to  be  tried ;  no  facts  are  to  be  found ; 
no  trial  occurs.  After  such  a  plea  nothing  remains  to  be 
done  except  that  the  court  shall  pronounce  judgment  upon 
the  facts  voluntarily  confessed  by  the  accused.  What  the  Con- 
stitution requires  is  that  the  trial  of  a  crime  shall  be  by  jury. 
If  the  accused  pleads  not  guilty,  there  must,  of  necessity, 


6S        CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

be  a  trial;  for  by  that  plea  he  puts  ' himself  on  his  country, 
which  country  the  jury  are';  he  contests,  by  that  plea, 
every  fact  necessary  to  establish  his  guilt;  he  is  presumed 
to  be  innocent;  nothing  is  confessed;  and  the  facts  neces- 
sary to  show  guilt  must  be  judicially  ascertained,  in  the 
mode  prescribed  by  law,  before  any  judgment  can  be 
rendered." 

Justice  Harlan's  answer  to  the  contention  of  the  court 
that  a  man  may  waive  trial  by  jury  is  based  upon  the  fact 
that  he  had  not  pleaded  guilty.  If  he  has  pleaded  guilty, 
of  course,  as  Justice  Harlan  said,  there  will  be  no  need  for 
trial;  the  case  is  determined,  and  the  only  thing  that  re- 
mains to  be  done  is  to  administer  the  penalty.  In  other 
words,  the  jury  is  to  determine  whether  a  man  is  guilty  or 
innocent,  when  he  pleads  not  guilty.  This  is  the  only 
method  allowed  by  the  Constitution.  Justice  Harlan's  con- 
stitutional doctrine  is  that  the  only  process  of  law  by  which 
a  man  may  be  deprived  of  his  life  or  liberty  is  by  complete 
jury  trial,  according  to  the  customary  meaning;  and  so 
long  as  the  Constitution  reads  as  it  does,  there  is  no  other 
recourse,  either  for  the  government  or  for  the  accused. 

Property. — The  court  has  in  many  cases  been  called  on 
to  determine  what  is  and  what  is  not  property,  and  has  pro- 
nounced some  things  not  to  be  property  which  Justice  Har- 
lan thought  ought  to  be  considered  such;  but  it  cannot  be 
said  that  it  has  declared  anything  to  be  property  which  he 
thought  ought  not  to  be  so  considered.  There  are  several 
interesting  cases  bearing  on  this  point.  The  case  of  Loui- 
siana V.  Mayor,  etc.,  of  New  Orleans,  109  U.  S.  285,  was 
an  early  one  in  Justice  Harlan's  experience. 

The  case  involved  a  statute  of  Louisiana  which  made  the 
locality  in  which  mob  violence  had  been  the  cause  of  de- 
struction of  property  responsible  for  such  destruction.  The 
case  has  been  explained  in  the  chapter  on  the  obligation  of 
contracts.^  A  judgment  having  been  secured  against  the 
city  of  New  Orleans  for  property  destroyed,  the  city  re- 

^  See  page  49. 


DUE   PROCESS   OF   LAW  6g 

fused  to  make  payment,  on  the  ground  that  there  were 
insufficient  funds  in  the  treasury,  and  that  it  was  impossible, 
under  the  statute  of  Louisiana  which  Hmited  the  amount  of 
assessment,  to  collect  taxes  to  meet  this  obligation.  The 
question  was,  did  this  later  statute,  which  prohibited  an 
assessment  beyond  a  certain  percentage,  deprive  the  person 
who  held  the  judgment  of  his  property  without  due  process 
of  law?  The  court,  speaking  through  Justice  Field,  did 
not  answer  this  question  exactly  in  the  negative,  but  gave 
an  answer  which  amounted  to  the  same  thing. 

The  discussion  by  the  court  of  this  point  is  very  brief. 
Justice  Harlan,  however,  in  his  dissent  dwells  on  it  at 
length.  The  court  spoke  as  follows :  "  Conceding  that  the 
judgments,  though  founded  upon  claims  to  indemnity  for 
unlawful  acts  of  mobs  or  riotous  assemblages,  are  property 
in  the  sense  that  they  are  capable  of  ownership  and  may 
have  a  pecuniary  value,  the  relators  cannot  be  said  to  be  de- 
prived of  them  so  long  as  they  continue  an  existing  liability 
against  the  city.  Although  the  present  limitation  of  the 
taxing  power  of  the  city  may  prevent  the  receipt  of  suffi- 
cient funds  to  pay  the  judgment,  the  Legislature  of  the 
State  may,  upon  proper  appeal,  make  other  provisions  for 
their  satisfaction.  The  judgment  may  also  perhaps  be  used 
by  the  relators  or  their  assignees  as  offsets  to  demands  of 
the  city;  at  least  it  is  possible  that  they  may  be  available 
in  various  ways.  Be  this  as  it  may,  the  relators  have  no 
such  vested  right  in  the  taxing  power  of  the  city  as  to 
render  its  diminution  by  the  State,  to  a  degree  affecting  the 
present  collection  of  their  judgments,  a  deprivation  of  their 
property  in  the  sense  of  the  constitutional  prohibition.  A 
party  cannot  be  said  to  be  deprived  of  his  property  in  a 
judgment  because  at  the  time  he  is  unable  to  collect  it." 

This  gives  in  full  the  bearing  of  the  opinion  upon  the 
point  of  due  process  of  law.  The  main  part  of  the  opinion 
is  devoted  to  showing  that  the  statute  in  question  did  not 
impair  the  obligation  of  contracts.  The  question  of  due 
process,  which  Justice  Harlan  thought  ought  to  have  de- 


JO       CONSTITUTIONAL   DOCTRINES   OF   JUSTICE    HARLAN 

termined  the  case  for  the  plaintiffs,  was  therefore  slurred 
over.  It  is  seen  that  the  argument  was  not  that  the  judg- 
ments were  not  property,  but  that  they  were  not  property 
in  the  sense  that  their  immediate  collection  could  be  forced. 

The  contention  of  the  court  on  this  point  did  not  suit 
Justice  Harlan.  He  knew  that  there  were  ulterior  motives 
behind  the  plea  of  the  city  that  there  was  no  money  in  its 
treasury  to  meet  these  obligations.  To  him  these  judgments 
constituted  a  just  debt  which  ought  to  be  paid.  He  therefore 
undertook  to  prove  that  judgments  are  property,  and  that 
the  statute  was  unconstitutional  in  that  it  deprived  the 
owner  of  their  enforcement.  "  Its  value  as  property  de- 
pends in  every  legal  sense  upon  the  remedies  which  the  law 
gives  to  enforce  its  collection.  To  withhold  from  the  citi- 
zen who  has  a  judgment  for  money,  the  judicial  means  of 
enforcing  its  collection;  or,  what  is,  in  effect,  the  same 
thing,  to  withdraw  from  the  judgment  debtor,  a  municipal 
corporation,  the  authority  to  levy  taxes  for  its  payment,  is 
to  destroy  the  value  of  the  judgment  as  property.  ...  If 
the  property  of  the  citizen  is  '  taken,*  within  the  meaning  of 
the  Constitution,  when  its  value  is  destroyed  or  permanently 
impaired  through  the  act  of  the  government,  or  by  the  acts 
of  others  under  the  sanction  or  authority  of  the  govern- 
ment, it  would  seem  that  the  citizen  holding  a  judgment 
for  money  against  a  municipal  corporation — which  judg- 
ment is  capable  of  enforcement  by  judicial  proceedings  at 
the  time  of  its  rendition — is  deprived  of  his  property  with- 
out due  process  of  law,  if  the  State,  by  a  subsequent  law, 
so  reduces  the  rate  of  taxation  as  to  make  it  impossible 
for  the  corporation  to  satisfy  such  judgment.  Since  the 
value  of  the  judgment,  as  property,  depends  necessarily 
upon  the  remedies  given  for  its  enforcement,  the  with- 
drawal of  all  remedies  for  its  enforcement,  and  compelling 
the  owner  to  rely  exclusively  upon  the  generosity  of  the 
judgment  debtor,  is,  I  submit,  to  deprive  the  owner  of  his 
property." 

In  reply  to  the  contention  of  the  court  that  the  judg- 


DUE   PROCESS   OF   LAW  7 1 

ments  were  still  existing  liabilities  against  the  city,  Justice 
Harlan  said :  "  My  answer  is,  that  such  liability  on  the  part 
of  the  city  is  of  no  consequence,  unless,  when  payment  is 
refused,  it  can  be  enforced  by  legal  proceedings." 

Another  case  which  involved  a  somewhat  similar  con- 
sideration came  up  from  West  Virginia.  It  was  the  case 
of  Freeland  v.  WilHams,  131  U.  S.  405,  and  was  a  question 
of  trespass  which  took  place  during  the  Civil  War.  Free- 
land  while  a  soldier  had  taken  cattle  from  Williams.  Wil- 
liams sued  Freeland  and  received  judgment.  After  this 
proceeding,  a  new  constitution  went  into  effect  for  West 
Virginia,  a  section  of  which  relieved  persons  of  such  debts 
incurred  during  the  Civil  War.  One  of  the  questions  was, 
did  that  section  of  the  constitution  of  West  Virginia  which 
made  it  impossible  for  Williams  to  collect  the  money  on  his 
judgment  take  property  without  due  process  of  law?  The 
court,  speaking  through  Justice  Miller,  said  that  it  did  not. 
Justice  Harlan  in  his  dissent  said  that  it  did. 

In  giving  the  reasons  for  its  decision,  the  court  spoke  as 
follows :  "  Was  it  competent  for  that  convention  to  establish 
a  rule  of  law  which  is  now  the  recognized  rule  of  this  court, 
and  perhaps  of  all  the  courts  of  the  United  States,  which  is 
commended  by  the  highest  authorities,  and  which  is  emi- 
nently adapted  to  the  purpose  of  quieting  strife  and  securing 
repose  after  the  turmoils  of  a  civil  war,  although  the  prin- 
ciple asserted  was  in  opposition  to  that  held  by  the  supreme 
court  of  appeals  of  the  State?  That  this  principle  would 
govern  all  cases  where  the  act  for  which  the  party  was 
sued  occurred  after  its  establishment  does  not  admit  of 
question.  That  it  was  the  law  of  the  country  before  its 
adoption  by  the  State  constitution  there  is  as  little  doubt. 
Shall  it  be  held  to  be  incapable  of  enforcement  and  for- 
bidden by  the  Constitution  of  the  United  States  because  it 
is  made  to  cover  judgments  already  rendered  in  violation  of 
the  principle  asserted?  The  Constitution  of  the  State 
remedies  the  defects  of  the  proceeding  by  bill  in  chancery ; 
it  creates  no  new  process  of  law ;  it  makes  that  which  always 


72       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

has  been  due  process  of  law  efficient  by  removing  objections 
and  obstructions  to  its  operation.  It  simply  declares  that  a 
judgment  for  a  wrong  or  tort,  which  in  itself  was  erroneous, 
is  a  voidable  judgment,  and  may  be  voided,  if  it  can  be 
brought  within  due  process  of  law  already  existing,  and 
shall  by  this  means  be  inquired  into,  and  if  it  is  against  right, 
justice,  and  law,  shall  be  no  longer  in  force,  and  the  judg- 
ment plaintiff  shall  be  forever  enjoined  from  putting  it  into 
execution."  Thus  it  is  seen  that  the  argument  of  the  court 
amounts  to  saying  that  it  is  not  unconstitutional  for  a  State 
so  to  amend  its  constitution  as  to  take  property  as  long  as 
the  means  through  which  that  property  is  taken  are  not  in 
conflict  with  a  process  of  law  which  has  become  widely 
recognized  as  due  process  of  law. 

Justice  Harlan  could  not  accept  that  doctrine.  In  his 
dissent  is  found  the  following  opinion:  "If  the  taking  of 
cattle  was  illegal,  the  right  to  recover  from  the  wrong-doer 
their  reasonable  value  was  an  absolute  one,  of  which  the 
owner  could  not  be  deprived  by  a  legislative  enactment  of 
the  State,  or  by  an  amendment  of  its  Constitution.  The 
judgment  obtained  by  Freeland  was  an  adjudication  that 
the  taking  was  illegal.  He  acquired  by  that  judgment  a 
vested  right  to  have  and  demand  the  amount  named  in  it, 
as  well  as  the  benefit  of  such  remedies  as  the  law  gave  for 
the  enforcement  of  personal  judgments  for  money.  The 
judgment  was,  therefore,  property  of  which  the  State  could 
not  deprive  him,  except  by  due  process  of  law.  And  a  con- 
stitutional provision,  subsequently  enacted,  declaring  that 
the  defendant's  property  should  not  be  seized  or  sold  under 
final  process  on  such  judgment,  is  not  due  process  of  law. 
I  cannot  agree  that  a  State  may,  by  amendment  of  its  funda- 
mental law,  prevent  a  citizen  from  recovering  the  value  of 
property,  of  which,  according  to  the  final  judgment  of  its 
own  courts,  he  has  been  illegally  deprived  by  a  mere  tres- 
passer. That  would  be  sheer  spoliation  under  the  forms 
of  law.  If  the  amendment  in  question  had,  in  terms,  given 
the  defendant  a  right  to  a  new  trial,  of  the  action  of  trespass 


DUE   PROCESS   OF  LAW  73 

in  the  same  court,  after  the  time  had  passed,  within  which, 
according  to  the  settled  modes  of  procedure,  he  could,  of 
right,  apply  for  a  new  trial,  it  would  have  accomplished,  in 
respect  to  the  judgment  against  him,  precisely  what,  in 
effect,  has  been  held  by  this  court  to  be  consistent  with  the 
Fourteenth  Amendment.  .  .  . 

"The  only  possible  ground  upon  which  the  judgment 
below  can  be  sustained,  consistently  with  the  law  of  the 
land,  is  to  hold  that  no  court  of  any  State  had  any  juris- 
diction in  the  year  1867,  even  with  the  parties  before  it,  to 
inquire,  in  any  action  of  trespass,  whether  an  alleged  taking 
of  the  private  property  of  a  citizen  was  a  mere  trespass,  or 
was  an  act  of  war  upon  the  part  of  the  defendant,  a  Con- 
federate soldier,  and  to  give  judgment  according  to  the 
result  of  that  inquiry." 

From  the  above  cases  it  may  be  deduced  that  Justice 
Harlan  considered  a  judgment  as  property  within  the 
meaning  of  the  Constitution  of  the  United  States,  and  held 
that  any  action  taken  by  the  State  to  render  ineffective  the 
collection  of  such  judgment  amounts  to  the  taking  of 
property  without  due  process  of  law.  It  is  true  that  the 
court  did  not  hold  that  a  judgment  was  not  property,  but  it 
did  hold  that  the  action  on  the  part  of  the  State  did  not 
amount  to  the  taking  of  property  without  due  process  of 
law.  Since,  however,  the  action  of  the  State  destroyed  the 
value  of  the  judgment  in  the  hands  of  the  owner.  Justice 
Harlan  contended  that  property  had  been  taken.  No  doubt 
the  court  felt  that  a  certain  conclusion  had  to  be  reached, 
and  that  it  was  merely  a  matter  of  making  the  decision 
appear  constitutional,  or  rather  of  seeming  to  justify  an  act 
as  constitutional.  Justice  Harlan  did  not  hold  with  such 
reasoning;  with  him  the  Constitution  was  too  sacred  for 
such  twisting.  The  decision  of  the  court  may  have  been 
wise,  but  a  contrary  decision  could  certainly  have  done  little 
to  stir  up  any  additional  animosity. 

The  case  of  Backus  v.  Fort  Street  Union  Depot  Co.,  169 
U.  S.  557,  involved  a  somewhat  complicated  question  of 


74       CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

procedure.  The  contention  between  the  court  and  Justice 
Harlan,  however,  was  on  the  definite  point  of  taking 
property  without  due  process  of  law.  The  case  came  up 
from  the  supreme  court  of  Michigan.  The  plea  had  been 
made  that  in  a  jury  trial  to  determine  what  should  be  just 
compensation  for  property  condemned  for  public  use,  just 
compensation  had  not  been  given  because  the  judge  had 
not  properly  charged  the  jury. 

The  condemnation  was  of  a  factory  site,  and  the  plain- 
tiffs claimed  that  they  should  have  had,  in  addition  to  the 
value  of  the  property  taken,  the  profits  which  they  lost  by 
changing  the  location  of  their  factory,  that  is,  during  the 
time  consumed  by  this  change.  The  court  said  that  the 
finding  of  the  jury  was  due  process  of  law,  and  that  hence 
no  property  was  unduly  taken. 

No  particular  argument  needs  to  be  noticed.  The  court 
said  that  it  was  due  process,  and  Justice  Harlan  said  that 
it  was  not.  He  concluded  as  follows :  "  Without  referring 
to  other  matters  discussed  at  the  bar  and  in  the  elaborate 
brief  of  counsel,  I  place  my  dissent  from  the  opinion  and 
judgment  of  the  court  upon  the  ground  that  the  trial  court 
committed  error  in  its  charge  to  the  jury  as  to  the  principles 
which  should  guide  them  in  determining  the  just  compensa- 
tion to  which  the  plantiffs  in  error  were  entitled."  There 
was  little  question  that  the  plaintiffs  had  not  received  full 
compensation  for  their  property  rights,  and  Justice  Harlan 
doubtless  appreciated  that  fact. 

One  of  the  most  interesting  and  hotly  contested  cases  that 
ever  came  up  to  the  Supreme  Court  for  determination  of 
the  meaning  of  property  in  connection  with  its  seizure  with- 
out due  process  of  law  was  that  of  Taylor  v.  Beckham,  178 
U.  S.  548.  This  case  came  up  from  the  Supreme  Court  of 
Kentucky,  and  involved  the  question  of  the  election  of  the 
governor  of  that  State.  The  facts  in  the  case  were  briefly 
as  follows :  Taylor  and  Marshall  were  the  Republican  candi- 
dates for  the  governorship  and  lieutenant-governorship  re- 
spectively of  Kentucky.     Goebel  and  Beckham  were  the 


DUE   PROCESS   OF   LAW  75 

Democratic  candidates.  According  to  the  election  returns, 
Taylor  and  Marshall,  the  Republican  candidates,  were 
elected.  The  Democratic  candidates  filed  a  protest  and  pro- 
ceeded to  contest  the  election.  According  to  the  constitu- 
tion of  the  State,  the  method  of  settling  a  contested  election 
is  to  select  by  lot  a  number  of  men  from  each  house  of  the 
General  Assembly,  who  are  to  investigate  the  election  and 
report  as  to  who  was  elected.  This  was  done,  and  when 
the  committee  returned  its  decision,  it  was  in  favor  of  the 
Democrats.  Soon  thereafter  Goebel  was  shot,  supposedly 
by  Taylor,  or  at  his  instigation.  The  fight  was  nevertheless 
continued  by  the  candidate  for  the  lieutenant-governor- 
ship, Beckham.  The  committee  to  investigate  the  election 
decided,  seemingly  without  any  formal  investigation,  that 
Goebel  and  Beckham  had  received  the  majority  of  the  votes 
cast  and  were  elected.  But  Taylor  would  not  surrender  the 
office  to  Beckham,  whereupon  the  latter  took  the  case  into 
the  state  supreme  court.  There  the  decision  was  rendered 
in  favor  of  Beckham.  Taylor  then  carried  his  appeal  to  the 
Supreme  Court  of  the  United  States,  claiming  that  the  ac- 
tion of  the  legislature  is  not  making  a  fair  investigation 
of  the  election  returns,  and  of  the  supreme  court  of  the 
State  in  rendering  its  decision  against  him,  had  deprived 
him  of  his  property  without  due  process  of  law.  In  con- 
nection with  this  claim  was  also  set  up  the  plea  that  the 
summary  fashion  in  which  the  investigating  committee  had 
arrived  at  its  decision  amounted  to  a  denial  of  the  republican 
form  of  government.  Justice  Harlan  did  not  dwell  on  that 
point  as  much  as  on  the  question  of  due  process  of  law. 
The  court  dismissed  the  case  for  want  of  jurisdiction,  upon 
the  ground  that  a  public  office  is  not  property  within  the 
meaning  of  the  Constitution,  and  that  the  whole  question 
was  political. 

Justice  Harlan  thought  that  the  court  ought  to  have  taken 
jurisdiction  and  declared  to  whom  the  office  belonged.  He 
thought  that  the  right  to  an  office  was  property,  the  owner- 
ship of  which  could  not  be  interfered  with  without  due 


76        CONSTITUTIONAL   DOCTRINES   OF   JUSTICE    HARLAN 

process  of  law.  He  said:  "The  majority  of  this  court 
decide  that  an  office  held  under  the  authority  of  a  State 
cannot  in  any  case  be  deemed  property  within  the  meaning 
of  the  14th  Amendment,  and  hence,  it  is  now  adjudged, 
the  action  of  a  state  legislature  or  state  tribunal  depriving 
one  of  a  state  office — under  whatever  circumstances  or  by 
whatever  mode  the  result  is  accomplished — cannot  be  re- 
garded as  inconsistent  with  the  Constitution  of  the  United 
States.  Upon  that  ground  the  court  declines  to  take  juris- 
diction of  this  writ  of  error.  If  the  court  had  dismissed  the 
writ,  or  affirmed  the  judgment  upon  the  ground  that  there 
had  been  no  violation  of  the  principles  constituting  due 
process  of  law,  its  action  would  not  have  been  followed  by 
the  evil  results  which,  I  think,  must  inevitably  follow  from 
the  decision  now  rendered." 

From  this  it  appears  that  Justice  Harlan  did  not  base  his 
objection  to  the  decision  so  much  upon  the  assertion  that 
in  this  particular  case  one  had  been  deprived  of  property 
without  due  process  of  law,  as  upon  the  assertion  of  the 
court  that  public  office  cannot  under  any  circumstances  be 
considered  property.  It  is  clear,  however,  that  he  thought 
a  proper  investigation  of  this  case  would  have  found  that 
the  one  who  held  office  was  not  the  one  who  had  received 
the  majority  of  the  votes.  It  might  have  been  difficult  for 
the  court  to  find  that  there  was  not  deprivation  without  due 
process  of  law  if  public  office  had  been  declared  to  be  prop- 
erty, yet  if  it  were  property  the  question  should  have  been 
answered. 

Justice  Harlan  furthermore  challenged  the  assertion  that 
precedent  gave  no  grounds  for  determining  whether  a  man 
had  been  deprived  of  his  office  without  due  process  of  law. 
He  found  by  an  examination  of  former  decisions  that 
whenever  the  dispute  had  been  between  individuals,  public 
office  had  been  considered  a  property  right,  whereas  when 
the  dispute  was  between  the  individual  and  the  State,  it  had 
not  been  considered  a  property  right.  In  the  case  of 
Kennard  v.  Louisiana,  ex  rel.  Morgan,  92  U.  S.  480,  he 


DUE   PROCESS   OF   LAW  77 

found  that  the  court  had  determined  this  very  point.  The 
claim  had  been  advanced  in  that  case  that  the  State,  through 
her  judiciary,  had  deprived  Kennard  of  his  office  without 
due  process  of  law.  But  the  court  took  jurisdiction  of  the 
case  and  affirmed  the  judgment  of  the  supreme  court  of 
Louisiana  upon  the  ground  that  the  requirement  in  the 
fourteenth  amendment  of  due  process  of  law  had  not  been 
violated.  With  this  case  as  a  precedent,  the  court  refused 
to  dismiss  the  case  of  Foster  v.  Kansas,  ex  rel.  Johnston, 
III  U.  S.  201,  where  the  sole  issue  was  as  to  the  right  of 
Foster  to  hold  the  office  of  county  attorney.  In  the  case 
of  Boyd  V.  Nebraska,  ex  rel.  Thayer,  143  U.  S.  135,  the 
court  had  removed  Boyd  from  office  as  governor  of  Ne- 
braska and  put  Thayer  in  his  place.  In  the  case  of  Wilson 
V.  North  Carolina,  169  U.  S.  586,  the  court  had  again  de- 
clared that  under  justifying  circumstances  it  would  investi- 
gate and  determine  who  was  rightly  entitled  to  hold  office. 
From  these  cases  it  is  seen  that  the  court  was  not  without 
significant  precedent  to  answer  the  question  asked. 

Justice  Harlan,  after  reviewing  these  cases,  said :  "  When 
the  Fourteenth  Amendment  forbade  any  State  from  depriv- 
ing any  person  of  life,  liberty,  or  property  without  due 
process  of  law,  I  had  supposed  that  the  intention  of  the 
people  of  the  United  States  was  to  prevent  the  deprivation  of 
any  legal  right  in  violation  of  the  fundamental  guarantees 
inhering  in  due  process  of  law.  The  prohibitions  of  that 
Amendment,  as  we  have  often  said,  apply  to  all  the  instru- 
mentalities of  the  state,  to  its  legislative,  executive,  and 
judicial  authorities;  and  therefore  it  has  become  a  settled 
doctrine  in  the  constitutional  jurisprudence  of  this  country 
that  'whoever  by  virtue  of  public  position  under  a  state 
government  deprives  another  of  property,  life,  or  liberty 
without  due  process  of  law  .  .  .  violates  the  constitutional 
inhibition ;  and  as  he  acts  in  the  name  and  for  the  state,  and 
is  clothed  with  the  state's  power,  his  act  is  that  of  the 
state.  This  must  be  so,  or  [as  we  have  often  said]  the 
constitutional  prohibition  has  no  meaning.'" 
6 


78        CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

These  quotations  show  sufficiently  well  the  grounds  upon 
which  Justice  Harlan  based  his  arguments.  He  evidently 
felt  that  with  an  impartial  tribunal  such  as  he  conceived 
it  the  duty  of  the  court  to  be,  one  that  would  shut  out  all 
other  considerations  and  decide  each  particular  case  by  an 
honest  application  of  reason  to  law,  such  an  explanation  of 
the  due  process  clause  would  have  been  a  healthful  interpre- 
tation of  the  Constitution,  for  it  might  serve  to  counteract 
much  trickery  in  state  elections. 

The  difference  between  what  Justice  Harlan  conceived 
to  be  due  process  of  law  with  regard  to  the  taxation  of 
property  and  the  opinion  which  has  been  established  by  the 
decisions  of  the  court  seems  to  have  revolved  around  the 
single  point  of  special  assessments.  In  a  series  of  cases 
involving  this  question  Justice  Harlan  has  held  consistently 
to  one  doctrine,  and  he  has  characteristically  asserted  it 
whenever  the  question  has  come  before  the  court. 

Before  discussing  the  cases  involving  the  principle  of 
special  assessment,  a  brief  consideration  may  be  advisable 
of  the  case  of  Linford  v.  Ellison,  155  U.  S.  503,  in  which 
Justice  Harlan  was  apparently  in  favor  of  a  tax  which 
contained  an  element  of  the  injustice  imputed  to  the  special 
assessments  as  interpreted  by  the  Supreme  Court.  In  this 
case  the  court  dismissed  a  suit  against  the  city  of  Kaysville, 
in  the  Territory  of  Utah,  because  the  amount  of  money 
involved  did  not  give  jurisdiction.  The  dispute  arose  out 
of  the  sale  of  a  wagon  belonging  to  a  farmer  living  away 
from  the  settled  portions  of  the  city,  to  obtain  the  sum  of 
fifty  dollars  due  under  the  tax  levied  by  the  city.  The  sale 
of  the  wagon  was  effected  by  James  H.  Linford,  Jr.,  the 
tax  collector,  and  the  suit  was  instituted  against  him  by 
Ephraim  P.  Ellison,  whose  wagon  had  been  sold,  under  the 
plea  that  since  his  property  was  too  far  removed  from  the 
city  to  receive  any  benefit  from  being  within  the  corporate 
limits,  the  city  tax  upon  his  land  took  property  without  due 
process  of  law.     The  territorial  court  sustained  his  plea. 


DUE   PROCESS   OF  LAW  79 

and  refunded  to  Ellison  the  fifty  dollars.  The  case  was 
appealed  to  the  Supreme  Court  of  the  United  States  by  the 
tax  collector  for  a  determination  of  the  question  whether  the 
tax  took  property  without  due  process  of  law.  The  court 
dismissed  the  case,  asserting  that  since  the  amount  involved 
was  less  than  five  thousand  dollars  it  did  not  have  juris- 
diction. Justice  Harlan,  however,  dissented  from  the 
opinion.  He  asserted  very  emphatically  that  the  Supreme 
Court  was  called  upon  to  review  an  act  of  a  subordinate 
governmental  authority  which  had  been  accused  of  taking 
property  without  due  process  of  law,  and  that  even  if  the 
amount  in  dispute  did  not  reach  the  sum  of  five  thousand 
dollars  it  was  nevertheless  a  question  for  the  court  to 
answer. 

In  this  connection  he  said :  "  It  is  not  disputed  that  the 
plaintiff's  lands  are  within  the  limits  of  Kaysville,  as  de- 
fined by  the  act  of  the  territorial  legislature.  It  is  conceded 
that  the  seizure  of  the  plaintiff's  wagon  for  the  taxes  on  his 
lands  was  legal,  if  the  statute  of  the  territory  was  con- 
stitutional so  far  as  it  authorized  taxes  to  be  imposed  on 
such  lands  within  the  defined  limits  of  Kaysville,  as  were 
agricultural  lands,  namely,  lands  outside  of  the  platted  part 
of  the  city,  which  did  not  receive  the  benefits  of  the  city 
government.  I  submit  that  there  is  no  disputed  question  in 
the  case,  except  that  which  involves  the  constitutional  power 
of  the  territorial  legislature,  acting  under  the  United  States, 
to  authorize  the  imposition  of  taxes  for  city  purposes  on 
lands  situated  as  are  those  of  the  plaintiff.  The  facts  were 
agreed  and  it  is  apparent  that  the  parties  intended  to  raise 
no  question  except  as  to  the  validity  of  the  authority  exer- 
cised by  the  territorial  legislature  in  empowering  the  city  of 
Kaysville  to  tax  the  lands  here  in  question." 

The  case  of  Norwood  v.  Baker,  172  U.  S.  269,  in  which 
Justice  Harlan  rendered  the  opinion  of  the  court,  contains 
the  essence  of  his  doctrine  on  the  point  of  special  assess- 
ment. This  case  involved  an  unusually  expanded  burden 
upon  an  individual,  and,  as  Justice  Harlan  contended,  was 


80        CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

an  instance  of  what  might  be  continually  occurring,  though 
to  a  less  degree,  when  the  attempt  is  not  made  to  fix  by  the 
benefit  received  the  proportion  of  special  assessment  that 
persons  affected  should  pay.  Here  the  property  condemned 
was  a  strip  of  land  belonging  to  a  Mrs.  Baker.  The  com- 
pensation made  for  the  piece  of  land  was  $2000.  The 
special  assessment  upon  the  owner  amounted  to  $2218.58. 
Thus  the  owner  was  given  less  for  her  land  than  she  had  to 
pay  as  a  special  assessment;  in  other  words,  the  city  was 
charging  her  $218.58  for  taking  her  land.  This  the  court, 
speaking  through  Justice  Harlan,  held  to  be  taking  prop- 
erty without  due  process  of  law.  '*  In  our  judgment  the 
exaction  from  the  owner  of  private  property  for  the  cost 
of  public  improvement  in  substantial  excess  of  the  special 
benefit  accruing  to  him  is,  to  the  extent  of  such  excess,  a 
taking  ...  of  private  property  for  public  use  without  com- 
pensation. We  say  '  substantial  excess,'  because  exact 
equality  of  taxation  is  not  always  attainable,  and  for  that 
reason  the  excess  of  cost  over  special  benefits,  unless  it  be  of 
a  material  character,  ought  not  to  be  regarded  by  a  court  of 
equity  when  its  aid  is  invoked  to  restrain  the  enforcement 
of  a  special  assessment.'*  It  is  thus  seen  that  Justice  Harlan 
did  not  desire  the  impossible, — an  exact  apportionment  of 
the  assessment  according  to  the  benefits  to  be  derived,  but 
at  least  an  attempt  at  justice. 

As  has  been  noted,  this  decision  put  an  aspect  of  uncer- 
tainty upon  the  law,  for  prior  to  this  time  the  so-called 
frontage  rule  had  been  the  method  of  special  assessment. 
When  the  case  of  French  v.  Barber  Asphalt  Paving  Co., 
181  U.  S.  324,  came  before  the  court,  the  decision  of  Nor- 
wood V.  Baker  was  apparently  overturned.  The  later  case 
came,  by  writ  of  error,  from  the  supreme  court  of  Mis- 
souri. Improvements  had  been  made  by  the  Barber  Asphalt 
Paving  Company  on  a  certain  avenue  in  Kansas  City,  Mis- 
souri. A  special  tax  had  been  assessed  upon  the  owners  of 
lots  abutting  on  this  avenue,  to  help  pay  for  the  new  pave- 
ments.    To  this  end  liens  had  been  taken  upon  those  lots  to 


DUE   PROCESS   OF  LAW  8 1 

secure  the  tax.  The  paving  company  instituted  a  suit  to 
enforce  these  liens  so  as  to  receive  payment  for  the  work 
done  by  them.  The  state  supreme  court  decided  in  favor 
of  the  company.  Thereupon  an  appeal  was  taken  to  the 
Supreme  Court  by  French  and  others,  owners  of  abutting 
lots,  who  asserted  that  such  a  tax  amounted  to  the  taking 
of  property  without  due  process  of  law.  The  Supreme 
Court  affirmed  the  decision  of  the  state  court,  and  thus 
reasserted  the  validity  of  the  frontage  rule. 

In  dissenting  from  this  opinion  Justice  Harlan  reasserted 
the  doctrine  laid  down  in  Norwood  v.  Baker,  and  criticized 
the  court  for  not  following  the  precedent  set  by  that  case. 
He  furthermore  accused  the  court  of  vagueness  as  to  what 
consideration  should  guide  it  thereafter  in  deciding  whether 
or  not  a  special  assessment  amounts  to  the  taking  of  prop- 
erty without  due  process  of  law.  He  contended  more  vigor- 
ously than  ever  that  no  special  assessment  made  without 
inquiry  as  to  the  benefits  to  be  received  by  the  individual 
through  the  improvement  should  be  upheld.  In  conclud- 
ing he  said :  "  In  my  opinion  the  judgment  in  the  present 
case  should  be  reversed  upon  the  ground  that  the  assessment 
in  question  was  made  under  a  statutory  rule  excluding  all 
inquiry  as  to  special  benefits  and  requiring  the  property 
abutting  on  the  avenue  in  question  to  meet  the  entire  cost  of 
paving  it,  even  if  such  cost  was  in  substantial  excess  of  the 
special  benefits  accruing  to  it ;  leaving  Kansas  City  to  obtain 
authority  to  make  a  new  assessment  upon  the  abutting  prop- 
erty for  so  much  of  the  cost  of  paving  as  may  be  found 
upon  due  inquiry  to  be  not  in  excess  of  the  special  benefits 
accruing  to  such  property." 

It  may  be  judged  from  the  above  cases  that  Justice 
Harlan's  constitutional  doctrine  as  to  the  relation  between 
special  taxation  and  due  process  of  law  is  that  any  special 
tax  levied  is  unconstitutional  if  it  does  not  at  least  purport 
to  give  to  the  person  upon  whom  it  is  imposed  a  benefit 
equivalent  to  the  amount  paid.  In  other  words,  he  believed 
that  the  doctrine  promulgated  in  Norwood  v.  Baker  should 


82       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

always  hold.  The  exact  difference  between  this  doctrine 
and  that  of  the  court  needs  to  be  noted.  The  court  looked 
only  to  the  neighborhood  upon  which  the  assessment  had 
been  made,  and  tried  to  make  sure  that  the  assessment  would 
not  be  greater  than  the  benefits  to  be  derived  by  that  section 
as  a  section.  Justice  Harlan  wished  to  look  deeper  and 
ascertain  whether  the  individuals  who  had  to  pay  the  money 
would  stand  a  reasonable  chance  of  getting  value  received. 
The  illogicality  of  the  court's  decree  is  evident.  Under  such 
law  it  is  possible  that  some  will  pay  for  benefits  enjoyed 
only  by  others.  That,  however,  is  the  law,  and  it  seems 
to  have  been  established  because  of  ease  of  application.^ 

In  concluding  this  review  of  Justice  Harlan's  opinions  re- 
garding due  process  of  law,  it  is  seen  that  he  was  violently 
opposed  to  any  alteration  of  the  time-honored  jury  system; 
that  he  believed  that  public  office  should  be  considered 
property,  of  which  one  could  not  be  deprived  without  due 
process  of  law;  and  that  in  levying  special  assessments 
attempt  should  always  be  made  to  find  out  whether  the 
individual  is  likely  to  be  benefited  to  the  amount  of  the 
assessment  levied.  On  each  of  these  points  he  differed 
from  the  court,  and  stood  by  these  principles  to  the  last. 


6  See  also  Wight  v.  Davidson,  i8i  U.  S.  374,  and  Tonawanda  v> 
Lyon,  181  U.  S.  389,  for  similar  dissents  by  Justice  Harlan. 


CHAPTER  IV 
Interstate  and  Foreign  Commerce 

Liquor  Legislation. — The  question  of  interstate  and  for- 
eign commerce  is  probably  the  most  involved  one  in  consti- 
tutional law.  Its  difficulty  is  lessened  in  the  present  in- 
stance by  reason  of  the  fact  that  it  will  not  be  necessary  to 
review  it  in  all  its  aspects.  On  the  questions  here  involved 
Justice  Harlan  held,  in  certain  respects,  as  decided  views  as 
on  any  other  subject.  With  reference  to  state  liquor  legis- 
lation there  are  two  marked  dissents,  which,  though  they 
are  now  mainly  of  historic  value,  will  be  of  interest  in  show- 
ing his  insight  into  what  was  to  come.  The  two  cases  are 
Bowman  v.  Chicago  and  Northwestern  R.  Co.,  125  U.  S. 
465,  and  Rhodes  v.  Iowa,  170  U.  S.  412. 

In  the  former  case  there  is  called  into  question  a  statute 
of  the  State  of  Iowa  which  attempted  to  forbid  the  trans- 
portation of  spirituous  Hquors  into  that  State.  The  case 
came  up  in  a  suit  for  damages  against  the  railroad  company 
for  refusing  because  of  the  Iowa  law  to  accept  a  shipment 
of  beer  from  Chicago  consigned  to  a  place  in  Iowa.  The 
court  held,  in  accordance  with  the  plea  of  the  liquor  dealers, 
that  the  statute  in  question  was  unconstitutional,  for  the  fol- 
lowing reasons:  First,  it  was  a  burden  on  interstate  com- 
merce in  that  it  impeded  the  free  interchange  of  goods  be- 
tween Illinois  and  Iowa.  "  In  the  present  case,  the  defend- 
ant is  sued  as  a  common  carrier  in  the  State  of  Illinois,  and 
the  breach  of  duty  alleged  against  it  is  a  violation  of  the  law 
of  that  State  in  refusing  to  receive  and  transport  goods 
which,  as  a  common  carrier,  by  that  law,  it  was  bound  to 
accept  and  carry.  It  interposes  as  a  defense  a  law  of  the 
State  of  Iowa,  which  forbids  the  delivery  of  such  goods 
within  that  State.  Has  the  law  of  Iowa  any  extraterritorial 
force  which  does  not  belong  to  the  law  of  the  State  of  II- 

83 


84       CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

linois?  If  the  law  of  Iowa  forbids  the  deUvery,  and  the 
law  of  Illinois  requires  the  transportation,  which  of  the  two 
shall  prevail  ?  How  can  the  former  make  void  the  latter  ?  " 
Second,  the  Constitution  does  not  leave  it  to  the  States  to 
say  what  shall  or  shall  not  be  suitable  articles  of  commerce. 
To  hold  otherwise  would  be  to  assert  that  "  it  has  left  to 
each  State,  according  to  its  own  caprice  and  arbitrary  will, 
to  discriminate  for  or  against  every  article  grown,  produced, 
manufactured  or  sold  in  any  State  and  sought  to  be  intro- 
duced as  an  article  of  commerce  into  any  other."  Third, 
the  Iowa  law  was  not  a  legitimate  exercise  of  the  police 
power.  "  It  is  not  one  of  those  local  regulations  designed  to  aid 
and  facilitate  commerce ;  it  is  not  an  inspection  law  to  secure 
the  due  quality  and  measure  of  a  commodity ;  it  is  not  a  law 
to  regulate  or  restrict  the  sale  of  an  article  deemed  injurious 
to  the  health  and  morals  of  the  community ;  it  is  not  a  regu- 
lation confined  to  the  purely  internal  and  domestic  commerce 
of  the  State;  it  is  not  a  restriction  which  only  operates  upon 
property  after  it  has  become  mingled  with  and  forms  part 
of  the  mass  of  the  property  within  the  State.  It  is,  on  the 
other  hand,  a  regulation  directly  affecting  interstate  com- 
merce in  an  essential  and  vital  point.  .  .  .  The  right  to  pro- 
hibit sales,  so  far  as  conceded  to  the  States,  arises  only  after 
the  act  of  transportation  has  terminated,  because  the  sales 
which  the  State  may  forbid  are  of  things  within  its  jurisdic- 
tion." 

The  above  outline  gives  the  attitude  of  the  court  in  this 
case.  The  following  quotation  will  indicate  the  position 
which  Justice  Harlan  assumed:  "The  fundamental  ques- 
tion, therefore,  is  whether  Iowa  may  lawfully  restrict  the 
bringing  of  intoxicating  liquors  from  other  States  into  her 
limits,  by  any  person  or  carrier  for  another  person  or  cor- 
poration, except  such  as  are  consigned  to  persons  authorized 
by  her  laws  to  buy  and  sell  them  for  the  special  purposes 
indicated.  In  considering  this  question,  we  are  not  left  to 
conjecture  as  to  the  motives  prompting  the  enactment  of 
these  statutes ;  for  it  is  conceded  that  the  prohibition  upon 


INTERSTATE   AND   FOREIGN    COMMERCE  85 

common  carriers  bringing  intoxicating  liquors  from  other 
States,  except  under  the  foregoing  conditions,  was  adopted 
as  subservient  to  the  general  design  of  protecting  the  health 
and  morals  and  the  peace  and  good  order  of  the  people  of 
Iowa  against  the  physical  and  moral  evils  resulting  from 
the  unrestricted  manufacture  or  sale  of  intoxicating  liquors." 

Justice  Harlan's  argument  rests  upon  the  assertion  that 
liquors  are  inherently  not  suitable  articles  of  commerce. 
"  It  is  admitted  that  a  State  may  prevent  the  introduction, 
within  her  limits,  of  rags  or  other  goods  infected  with 
disease,  or  of  cattle  or  meat  or  other  provisions  which,  from 
their  condition,  are  unfit  for  human  use  or  consumption ;  be- 
cause, it  is  said,  such  articles  are  not  merchantable  or  legiti- 
mate subjects  of  trade  and  commerce.  But  suppose  the 
people  of  a  State  believe,  upon  reasonable  grounds,  that  the 
general  use  of  intoxicating  Hquors  is  dangerous  to  the  pub- 
lic peace,  the  public  health  and  the  public  morals;  what 
authority  has  Congress  or  the  judiciary  to  review  their  judg- 
ment upon  that  subject,  and  compel  them  to  submit  to  a  con- 
dition of  things  which  they  regard  as  destructive  of  their 
happiness  and  the  peace  and  good  order  of  society?  If, 
consistently  with  the  Constitution  of  the  United  States,  a 
State  can  protect  her  sound  cattle  .  .  .  she  ought  not  to  be 
deemed  disloyal  to  that  Constitution  when  she  seeks  by 
similar  legislation  to  protect  her  people  and  their  homes 
against  the  introduction  of  articles  which  are,  in  good  faith, 
and  not  unreasonably,  regarded  by  her  citizens  as  'laden 
with  infection '  more  dangerous  to  the  public  than  diseased 
cattle,  or  than  rags  containing  the  germs  of  disease." 

The  next  argument  presented  by  Justice  Harlan  was  that 
the  framers  of  the  Constitution  could  not  have  intended — 
whether  Congress  had  or  had  not  chosen  to  act  upon  this 
subject — "  to  withhold  from  a  State  authority  to  prevent  the 
introduction  into  her  midst  of  articles  or  commodities,  the 
manufacture  of  which,  within  her  limits,  she  could  prohibit, 
without  impairing  the  constitutional  rights  of  her  own 
people.  .  .  .  Even  the  constitutional  prohibition  upon  laws 


S6       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

impairing  the  obligation  of  contracts  does  not  restrict  the 
power  of  the  State  to  protect  the  health,  the  morals,  or  the 
safety  of  the  community,  as  the  one  or  the  other  may  be  in- 
volved in  the  execution  of  such  contracts."  In  further  sub- 
stantiation of  the  contention  that  the  police  power  of  the 
State  allowed  the  State  to  regulate  almost  anything  that  had 
to  do  with  public  health  and  morals  he  cited  the  case  of 
Wilson  V.  Blackbird  Creek  Marsh  Co.,  2  Pet.  245.  Other 
cases  are  cited  which  bear  on  this  point.  "  The  reserved 
power  of  the  States  to  guard  the  health,  morals  and  safety 
of  their  people  is  more  vital  to  the  existence  of  society  than 
their  power  in  respect  to  trade  and  commerce  having  no  pos- 
sible connection  with  those  subjects." 

It  is  difficult  to  overemphasize  the  importance  of  the  case 
of  Bowman  v.  Chicago  and  Northwestern  R.  Co.  in  its  rela- 
tion to  the  bearing  of  liquor  legislation  of  the  States  upon 
interstate  commerce.  This  was  the  first  time  that  such 
legislation  was  contested  before  the  Supreme  Court.  Here, 
as  Justice  Harlan  showed,  the  court  had  plenty  of  author- 
ity to  declare  such  legislation  constitutional.  As  a  matter 
of  fact,  the  court  had  to  go  out  of  its  way  to  declare  the  law 
unconstitutional.  Here  once  and  for  all  the  relation  be- 
tween liquor  legislation  and  interstate  commerce  could  have 
been  settled  by  declaring  spirituous  liquors  unfit  articles  of 
commerce,  of  such  a  kind  as  ought  not  to  be  forced  upon 
the  States  against  their  wills.  If  the  decision,  therefore, 
had  been  made  according  to  Justice  Harlan's  doctrine,  the 
whole  history  of  this  matter  would  have  been  changed. 
There  would  have  been  no  need  for  the  Wilson  Bill,  or 
for  the  Webb-Kenyon  Act  which  puts  into  the  hands  of  the 
States  exactly  the  power  that  an  affirmative  decision  in  this 
case  would  have  done.  The  tangle  which  has  resulted 
would  have  been  avoided.^ 

To  follow  out  the  progress  of  the  doctrine  of  the  Su- 
preme Court  relating  to  the  traffic  in  intoxicating  liquors 
the  case  of  In  re  Rahrer,  140  U.  S.  545,  must  next  be  con- 

1  Note  the  case  of  Leisy  v.  Hardin,  135  U.  S.  100,  where  Justice 
Harlan  concurred  in  a  dissent  upon  similar  grounds. 


INTERSTATE   AND   FOREIGN    COMMERCE  8/ 

sidered.  This  case  involved  the  constitutionaHty  of  a  stat- 
ute of  Congress  which  tried  to  undo  the  mischief  done  by 
the  Bowman  case.  This  act,  known  as  the  Wilson  Act,  pro- 
vided that  "  upon  arrival "  of  the  liquor  in  any  State  or  ter- 
ritory it  should  become  subject  to  the  laws  there.  This  law 
was  declared  constitutional,  and  seemed  to  be  the  remedy  for 
the  situation.  Justice  Harlan  dissented  from  the  reasoning 
of  the  court,  but  agreed  with  the  decree.  Since  no  opinion 
is  stated  by  him  it  cannot  be  known  upon  what  ground  he 
differed  from  the  court.  It  is  sufficient  to  say  that  in  this 
case  a  law  was  declared  constitutional  which  seemed  to  give 
the  States  full  power  to  control  the  liquor  traffic,  and  that 
Mr.  Harlan  agreed  that  it  was  constitutional. 

When,  however,  a  case  came  up  under  the  Wilson  Act,  the 
interpretation  which  the  court  gave  to  the  phrase  "upon 
arrival  in  a  State  "  overthrew  the  force  of  the  act.  In  this 
case,  though  Justice  Harlan  did  not  submit  a  separate  dis- 
senting opinion,  he  concurred  in  one  given  by  Justice  Gray.^ 
This  case,  Rhodes  v.  Iowa,  170  U.  S.  412,  arose  because 
of  the  fact  that  an  officer  of  the  State  of  Iowa,  acting  under 
authority  of  a  state  law,  had  seized  and  destroyed  at  the 
border  of  the  State  a  shipment  of  liquor  from  Illinois. 
The  statute  in  question  was  almost  identically  the  same  as 
the  one  which  had  been  declared  unconstitutional  in  the 
Bowman  case,  and  the  main  point  to  be  decided  was  whether 
the  subsequent  act  of  Congress  had  made  it  constitutional 
for  States  to  pass  laws  like  the  one  in  question.  Had  Con- 
gress acted  so  as  to  remove  the  barrier  of  interstate  com- 
merce from  the  States  in  their  attempts  to  pass  laws  for- 
bidding the  sale  of  liquor  within  their  borders  ? 

The  court  held  that  the  statute  of  the  State  of  Iowa  was 
constitutional,  but  in  order  to  do  so  found  it  necessary  so  to 
interpret  the  Wilson  Act  that  laws  passed  by  the  States 
under  its  operation  were  ineffective  in  driving  out  the  liquor 
business.     The  Wilson  Act  had  stipulated  that  liquor  should 

2  It  must  be  noted  that  the  case  of  O'Neil  v.  Vermont,  144  U.  S. 
323,  would  have  involved  this  same  point  had  the  court  taken  juris- 
diction. In  that  case  Justice  Harlan  delivered  a  stinging  dissent 
because  of  the  refusal  of  the  court  to  determine  the  case. 


88        CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

become  subject  to  state  law  "upon  arrival  in  a  State/*  but 
the  court  so  interpreted  this  phrase  that  the  goods  could 
proceed  to  their  destination  without  interruption.  "  Only 
after  their  coming  into  the  State  and  the  consummation  of 
their  shipment "  did  the  goods  become  subject  to  the  laws 
of  the  State.  "  The  words  *  shall  upon  arrival  in  such  state 
or  territory  be  subject  to  the  operation  and  effect  of  the 
laws  of  such  state  or  territory '  in  one  sense  might  be  held 
to  mean  arrival  at  the  state  line.  But  to  so  interpret  them 
would  necessitate  isolating  these  words  from  the  entire  con- 
text of  the  act,  and  would  compel  a  construction  destructive 
of  other  provisions  contained  therein.  But  this  would  violate 
the  fundamental  rule  requiring  that  a  law  be  construed  as  a 
whole,  and  not  by  distorting  or  magnifying  a  particular 
word  found  in  it.  It  is  clearly  contemplated  that  the  word 
*  arrival '  signified  that  the  goods  should  actually  come  into 
the  State,  since  it  is  provided  that  *  all  fermented,  distilled, 
or  other  intoxicating  liquors  or  liquids  transported  into  a 
state  or  territory,'  and  this  is  further  accentuated  by  the 
other  provision,  '  or  remaining  therein  for  use,  consumption, 
sale,  or  storage  therein.' " 

"This  language  makes  it  impossible  in  reason  to  hold 
that  the  law  intended  that  the  word  *  arrival '  should 
mean  at  the  state  line,  since  it  presupposes  the  coming  of 
the  goods  into  the  state  for  *  use,  consumption,  sale,  or 
storage.' " 

It  is  easy  to  see  the  nature  of  the  argument.  By  indulg- 
ing in  the  use  of  the  "  subtle  signification  of  words  and  the 
niceties  of  verbal  distinction"  which  they  condemn  as  not 
furnishing  a  safe  guide,  the  judges  came  to  their  conclusion. 
But  it  must  be  added  that  this  was  done  under  the  assump- 
tion by  the  court  that  unless  such  a  meaning  were  attached 
to  the  word  "  arrival "  the  act  would  not  have  been  consti- 
tutional. 

Naturally  the  dissenting  opinion  centered  its  argument 
in  the  word  "  arrival."  It  contended  that  no  such  distorted 
meaning  needed  to  be  attached  to  that  word  in  order  to 


INTERSTATE  AND  FOREIGN    COMMERCE  89 

allow  the  Wilson  Act  to  stand.  It  asserted  and  reinforced 
the  assertion  that  Hquor  legislation  was  a  legitimate  subject 
for  the  poHce  power  of  the  State.  That  being  true,  there 
was  little  question  that  the  act  of  Congress  was  constitu- 
tional under  the  broader  interpretation  of  the  word  "ar- 
rival/' which  was  quoted  as  follows  from  Chief  Justice 
Marshall:  "*To  arrive'  is  a  neuter  verb,  which  when  ap- 
plied to  an  object  moving  from  place  to  place  designates  the 
fact  of  *  coming  to '  or  '  reaching '  one  place  from  another, 
or  coming  to  or  reaching  a  place  by  travelHng  or  moving 
towards  it.  If  the  place  be  designated,  then  the  object  which 
reaches  a  place  has  arrived  at  it.  A  person  who  is  coming 
to  Richmond  has  arrived  when  he  enters  the  city.  But  it  is 
not  necessary  to  the  correctness  of  this  term,  that  the  place 
at  which  the  traveller  arrives  should  be  his  ultimate  destina- 
tion, or  the  end  of  his  journey.  A  person  going  from  Rich- 
mond to  Norfolk  by  water  arrives  within  Hampton  Roads 
when  he  reaches  that  place;  or  if  he  diverges  from  that 
direct  course  he  arrives  in  Petersburg  when  he  enters  that 
town.  That  is,  I  believe,  the  universal  understanding  of 
the  term."3 

As  is  of  course  known,  there  has  been  another  act  of 
Congress  which  in  its  meaning  amounts  to  making  it  unlaw- 
ful for  any  fermented  liquors  to  be  carried  into  any  place 
where  the  people  have  voted  it  out.  The  violations  of  this 
act  the  States  are  left  to  punish  as  violations  of  their  laws. 
It  seems  to  be  generally  accepted  that  this  act  will  be  de- 
clared constitutional.  The  situation  is  now  just  about  as  it 
would  have  been  had  the  Bowman  case  been  decided  accord- 
ing to  Justice  Harlan's  doctrine.  Spirituous  liquors  have 
practically  been  declared  an  article  that  a  State,  if  it  pleases 
to  do  so,  may  designate  as  unfit  to  be  carried  within  its 
borders. 

Race. — Justice  Harlan's  attitude  regarding  legislation  as 
to  race  distinctions  in  interstate  commerce  may  readily  be 
guessed.     The  question  seems  to  have  come  up  only  as  re- 


3  The  Patriot,  i  Brock.  407. 


90       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

gards  the  Jim  Crow  laws.  There  are  two  cases  which  are 
strongly  in  opposition  to  each  other.  In  the  one,  Hall  v. 
Decuir,  95  U.  S.  485,  the  Supreme  Court  declared  uncon- 
stitutional a  statute  of  Louisiana  which  forbade  the  separa- 
tion of  races  on  steamboats,  as  being  a  burden  placed  by  a 
State  upon  interstate  commerce;  and  in  the  other,  Louis- 
ville, N.  O.  and  T.  R.  Co.  v.  Mississippi,  133  U.  S.  587,  it 
declared  valid  a  law  of  Mississippi  which  required  that  the 
races  be  separated  on  the  trains  as  not  being  a  burden  im- 
posed by  the  State  upon  interstate  commerce.  A  full  dis- 
cussion of  the  latter  case  will  be  sufficient  to  give  the  import 
of  both.  From  the  first  decision  Justice  Harlan  did  not 
dissent,  but  from  the  other  he  did.  The  case  came  by  writ 
of  error  to  the  Supreme  Court  of  Mississippi  to  pass  upon 
the  constitutionality  of  a  statute  of  that  State  which  required 
separate  coaches  for  colored  people.  The  railroad  com- 
pany violated  that  law  in  refusing  to  furnish  separate  ac- 
commodations, and  argued  that  the  statute  was  unconstitu- 
tional in  that  it  amounted  to  a  regulation  of  interstate  com- 
merce. 

In  rendering  the  decision,  the  court,  speaking  through 
Justice  Brewer,  asserted  that  the  statute  affected  commerce 
only  within  the  State,  and  was  therefore  within  the  power 
of  the  State  to  pass.  The  main  contention  between  Justice 
Harlan  and  the  court  was  as  to  the  precedent  set  by  Hall  v. 
Decuir.  Justice  Brewer  attempted  to  explain  away  that 
case  as  follows :  "  So  the  decision  was  by  its  terms  carefully 
Hmited  to  those  cases  in  which  the  law  practically  interfered 
with  interstate  commerce.  Obviously  whether  interstate 
passengers  of  one  race  should,  in  any  portion  of  their  jour- 
ney, be  compelled  to  share  their  cabin  accommodation  with 
colored  passengers,  was  a  question  of  interstate  commerce, 
and  to  be  determined  by  Congress  alone.  In  this  case  the 
supreme  court  of  Mississippi  held  that  the  statute  applied 
solely  to  commerce  within  the  State ;  and  that  construction, 
being  the  construction  of  the  Statute  of  the  State  by  the 
highest  court,  must  be  conclusive  here.     If  it  be  a  matter 


INTERSTATE   AND    FOREIGN    COMMERCE  9 1 

respecting  wholly  commerce  within  the  State,  and  not  in- 
terfering with  commerce  between  the  States,  then  obviously 
there  is  no  violation  of  the  commerce  clause  of  the  Federal 
Constitution."  The  two  cases  seem  to  admit  tacitly  that  the 
Supreme  Court  of  the  United  States  will  hold  statutes  dis- 
criminating against  colored  persons  constitutional  if  the 
state  courts  will  uphold  them,  but  they  do  not  seem  to  say 
that  the  court  will  declare  statutes  of  the  same  nature  un- 
constitutional if  declared  unconstitutional  by  the  state 
courts. 

This  doctrine  did  not  meet  with  Justice  Harlan's  approval. 
Commenting  on  the  differentiation  made  by  the  court,  he 
said :  "  In  its  application  to  passengers  on  vessels  engaged 
in  interstate  commerce,  the  Louisiana  enactment  forbade 
the  separation  of  the  white  and  black  races  while  such  ves- 
sels were  within  the  limits  of  that  State.  The  Mississippi 
statute,  in  its  application  to  passengers  on  railroad  trains 
employed  in  interstate  commerce,  requires  such  separation 
of  races,  while  the  trains  are  within  that  State.  I  am  un- 
able to  perceive  how  the  former  is  a  regulation  of  interstate 
commerce  and  the  latter  is  not.  It  is  difficult  to  understand 
how  a  State  enactment  requiring  the  separation  of  the  white 
and  black  races  on  interstate  carriers  of  passengers,  is  a 
regulation  of  commerce  among  the  States,  while  a  similar 
enactment  forbidding  such  separation  is  not  a  regulation  of 
that  character."  In  other  words,  Justice  Harlan  said  that 
the  ruling  of  the  state  courts  on  the  matter  did  not  have 
weight.  It  was  for  the  United  States  Supreme  Court  to  say, 
and  if  they  had  said  that  one  thing  was  interstate  com- 
merce, that  thing  was  interstate  commerce,  even  if  the  state 
court  said  that  it  was  not. 

This  gives  in  sufficient  fulness  the  nature  of  the  above 
decisions  and  dissent.  These  seem  to  be  the  only  cases 
in  which  there  were  decisions  by  the  Supreme  Court  on 
the  question  of  separation  of  races  on  interstate  carriers. 
The  dissent  from  Louisville,  N.  O.  and  T.  R.  Co.  v.  Missis- 
sippi seems  to  be  the  only  assertion  made  by  Justice  Harlan 


92       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

regarding  the  bearing  of  such  laws  upon  interstate  com- 
merce, but  it  can  be  readily  seen  that  if  he  had  had  his  way 
the  Jim  Crow  laws  would  have  been  brushed  aside. 

The  Sherman  Anti-Trust  Law. — In  this  subject  are  found 
Justice  Harlan's  most  vigorous  dissents.  It  was  due  to  the 
fact  that  these  cases  were  so  much  in  the  public  eye  that 
Justice  Harlan  became  so  prominently  known  as  a  dissenter. 
Though  it  is  true  that  he  gave  more  dissenting  opinions  in 
the  earlier  part  of  his  life  than  he  did  in  the  later,  yet  his 
earlier  dissents  seem  not  to  have  attracted  so  much  atten- 
tion, probably  because  the  subjects  were  less  conspicuous. 
It  may  be  asserted,  therefore,  that  from  the  E.  C.  Knight 
case  to  his  death  Justice  Harlan  was  more  prominently  be- 
fore the  public  than  at  any  previous  time,  and  deservedly 
so,  because  his  dissents  were  greater  and  rang  more  truly 
of  the  democratic  spirit. 

The  first  case  arising  under  the  anti-trust  act  of  1890  was 
that  of  United  States  v.  E.  C.  Knight  Co.,  156  U.  S.  i. 
Though  this  case  is  hardly  any  longer  citable  for  precedent, 
it  w^ll  be  interesting  to  follow  out  the  change  of  opinion  on 
this  subject  on  the  part  of  the  Supreme  Court.  The  case 
came  into  the  Supreme  Court  under  the  following  circum- 
stances :  A  corporation,  chartered  under  the  laws  of  Penn- 
sylvania, had  been  arraigned  before  the  United  States  cir- 
cuit court  of  appeals  for  the  third  circuit  for  having  violated 
the  act  of  1890,  in  that  it  had  resorted  to  an  unlawful  re- 
straint of  trade  in  violation  of  the  statute  of  the  United 
States  forbidding  all  monopoly  in  restraint  of  trade.  The 
suit,  therefore,  was  against  the  various  companies  which 
had  conspired  to  form  the  American  Sugar  Refining  Com- 
pany. The  circuit  court  of  appeals  decided  in  favor  of  the 
corporation,  and  the  Supreme  Court  affirmed  its  decision. 

The  following  is  a  synopsis  of  the  decision  of  the  Supreme 
Court :  First,  referring  to  a  definition  of  the  word  "  monop- 
oly "  mentioned  by  the  counsel  for  the  United  States  as  be- 
ing applicable  in  English  law,  the  following  comment  was 
made :  "  But  the  monopoly  and  restraint  denounced  by  the 


INTERSTATE   AND   FOREIGN    COMMERCE  93 

act  are  the  monopoly  and  restraint  of  interstate  and  inter- 
national trade  or  commerce,  while  the  conclusion  to  be  as- 
sumed on  this  record  is  that  the  result  of  the  transaction 
complained  of  was  the  creation  of  a  monopoly  in  the  manu- 
facture of  a  necessary  of  Hfe. 

"  In  the  view  which  we  take  of  the  case,  we  need  not 
discuss  whether  because  the  tentacles  which  drew  the  out- 
lying refineries  into  the  dominant  corporation  were  sep- 
arately put  out,  therefore  there  was  no  combination  to 
monopolize;  or,  because,  according  to  political  economists, 
aggregations  of  capital  may  reduce  prices,  therefore  the 
objection  to  concentration  of  power  is  relieved;  or,  because 
others  were  theoretically  left  free  to  go  into  the  business  of 
refining  sugar,  and  the  original  stockholders  of  the  Phila- 
delphia refineries  after  becoming  stockholders  of  the  Amer- 
ican Company  might  go  into  competition  with  themselves,  or, 
parting  with  that  stock,  might  set  up  again  for  themselves, 
therefore  no  objectionable  restraint  was  imposed." 

Second,  the  control  of  this  matter  was  to  be  exercised  by 
the  States:  "It  is  vital  that  the  independence  of  the  com- 
mercial power  and  of  the  police  power,  and  the  delimitation 
between  them,  however  sometimes  perplexing,  should  al- 
ways be  recognized  and  observed,  for  while  the  one  fur- 
nishes the  strongest  bond  of  union,  the  other  is  essential  to 
the  preservation  of  the  autonomy  of  the  states  as  required 
by  our  dual  form  of  government;  and  acknowledged  evils, 
however  grave  and  urgent  they  may  appear  to  be,  had  better 
be  borne,  than  the  risk  be  run,  in  the  effort  to  suppress  them, 
of  more  serious  consequences  by  resort  to  expedients  of  even 
doubtful  constitutionality. 

"  It  will  be  perceived  how  far  reaching  the  proposition  is 
that  the  power  of  dealing  with  a  monopoly  directly  may  be 
exercised  by  the  general  government  whenever  interstate  or 
international  commerce  may  be  ultimately  affected."  Again : 
"  It  is  true  that  the  bill  alleged  that  the  products  of  these  re- 
fineries were  sold  and  distributed  among  the  several  states, 
and  that  all  the  companies  were  engaged  in  trade  or  com- 


94        CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

merce  with  the  several  states  and  with  foreign  nations ;  but 
this  was  no  more  than  to  say  that  trade  and  commerce  served 
manufacture  to  fulfill  its  function." 

Thus  the  argument  of  the  court  was  placed  expressly  on 
two  grounds,  in  the  first  place,  that  theoretically  there  was 
not  a  monopoly.  Even  though  the  syndicate  did  embrace 
all  the  sugar-refining  companies  in  the  country,  that  was  no 
reason  why  others  might  not  develop  in  the  future.  In  the 
second  place,  in  order  to  preserve  the  police  power  of  the 
States  it  was  advisable  to  leave  such  matters  in  their  hands. 

Justice  Harlan's  dissent  may  be  quoted  at  length.  "  If  it 
be  true  that  a  combination  of  corporations  or  individuals 
may,  so  far  as  the  power  of  Congress  is  concerned,  subject 
interstate  trade,  in  any  of  its  stages,  to  unlawful  restraints, 
the  conclusion  is  inevitable  that  the  Constitution  has  failed 
to  accomplish  one  primary  object  of  the  Union,  which  was 
to  place  commerce  among  the  states  under  the  control  of  the 
common  government  of  all  the  people,  and  thereby  relieve 
or  protect  it  against  burdens  or  restrictions  imposed,  by 
whatever  authority,  for  the  benefit  of  particular  localities 
or  special  interests." 

In  answer  to  the  question  as  to  what  is  an  unlawful  re- 
straint of  trade  he  said :  "  A  general  restraint  of  trade  has 
often  resulted  from  combinations  formed  for  the  purpose 
of  controlling  prices  by  destroying  the  opportunity  of  buyers 
and  sellers  to  deal  with  each  other  upon  the  basis  of  fair, 
open,  free  competition.  Combinations  of  this  character 
have  frequently  been  the  subject  of  judicial  scrutiny,  and 
have  always  been  condemned  as  illegal  because  of  their 
necessary  tendency  to  restrain  trade.  Such  combinations 
are  against  common  right  and  are  crimes  against  the  public.*' 

In  reference  to  the  inapplicability  of  the  state  power  to 
this  question  he  spoke  as  follows :  "  There  is  a  trade  among 
the  several  states  which  is  distinct  from  that  carried  on 
within  the  territorial  limits  of  a  state.  The  regulation  and 
control  of  the  former  is  committed  by  the  national  Constitu- 
tion to  Congress.     Commerce  among  the  states,  as  this  court 


INTERSTATE   AND   FOREIGN    COMMERCE  g$ 

has  declared,  is  a  unit,  and  in  respect  of  that  commerce  this 
is  one  country,  and  we  are  one  people.  It  may  be  regulated 
by  rules  applicable  to  every  part  of  the  United  States,  and 
state  lines  and  state  jurisdiction  cannot  interfere  with  the 
enforcement  of  such  rules.  The  jurisdiction  of  the  general 
government  extends  over  every  foot  of  territory  within  the 
United  States.  Under  the  power  with  which  it  is  invested, 
Congress  may  remove  unlawful  obstructions,  of  whatever 
kind,  to  the  free  course  of  trade  among  the  states.  In  so 
doing  it  would  not  interfere  with  the  'autonomy  of  the 
States,'  because  the  power  thus  to  protect  interstate  com- 
merce is  expressly  given  by  the  people  of  all  the  states. 
Interstate  intercourse,  trade,  and  traffic  is  absolutely  free, 
except  as  such  intercourse  may  be  incidentally  or  indirectly 
affected  by  the  exercise  by  the  state  of  their  reserved  police 
powers." 

A  further  comment  upon  the  inconsistency  of  the  view 
of  the  court  is  expressed  in  these  words :  "  Undue  restrictions 
or  burdens  upon  the  purchasing  of  goods,  in  the  market  for 
sale,  to  be  transported  to  other  states,  cannot  be  imposed 
even  by  a  state  without  violating  the  freedom  of  commer- 
cial intercourse  guaranteed  by  the  Constitution.  But  if  a 
state  within  whose  limits  the  business  of  refining  sugar  is 
exclusively  carried  on  may  not  constitutionally  impose  bur- 
dens upon  purchases  of  sugar  to  be  transported  to  other 
states,  how  comes  it  that  combinations  of  corporations  or 
individuals,  within  the  same  state,  may  not  be  prevented  by 
the  national  government  from  putting  unlawful  restraints 
upon  the  purchasing  of  that  article  to  be  carried  from  the 
state  in  which  such  purchases  are  made?  If  the  national 
power  is  competent  to  repress  state  action  in  restraint  of 
interstate  trade  as  it  may  be  involved  in  purchases  of  refined 
sugar  to  be  transported  from  one  state  to  another  state, 
surely  it  ought  to  be  deemed  sufficient  to  prevent  unlawful 
restraints  attempted  to  be  imposed  by  combinations  of  cor- 
porations or  individuals  upon  those  identical  purchases; 
otherwise,  illegal  combinations  of  corporations  or  individuals 


96       CONSTITUTIONAL  DOCTRINES   OF   JUSTICE    HARLAN 

may — so  far  as  national  power  and  interstate  commerce  are 
concerned — do,  with  impunity,  what  no  state  can  do." 

Thus  it  is  seen  that,  according  to  Justice  Harlan's  inter- 
pretation of  the  opinion  of  the  court,  the  court  had  declared 
to  be  within  the  jurisdiction  of  the  State  that  which,  by  this 
decision,  had  more  power  than  the  States  themselves  had. 

One  other  quotation  will  help  to  substantiate  the  doctrine 
set  forth  by  Justice  Harlan.  He  said:  "After  the  fullest 
consideration  I  have  been  able  to  bestow  upon  this  im- 
portant question,  I  find  it  impossible  to  refuse  my  assent  to 
this  proposition:  Whatever  a  state  may  do  to  protect  its 
completely  interior  traffic  or  trade  against  unlawful  re- 
straints, the  general  government  is  empowered  to  do  for  the 
protection  of  the  people  of  all  the  states — for  this  purpose 
oiie  people — against  unlawful  restraints  imposed  upon  inter- 
state traffic  or  trade  in  articles  that  are  to  enter  into  com- 
merce among  the  several  states.  If,  as  already  shown,  a 
state  may  prevent  or  suppress  a  combination,  the  effect  of 
which  is  to  subject  its  domestic  trade  to  the  restraints  neces- 
sarily arising  from  their  obtaining  the  absolute  control  of 
the  sale  of  a  particular  article  in  general  use  by  the  com- 
munity, there  ought  to  be  no  hesitation  in  allowing  to  Con- 
gress the  right  to  suppress  a  similar  combination  that  im- 
poses a  like  unlawful  restraint  upon  interstate  trade  and 
traffic  in  that  article.  While  the  states  retain,  because  they 
have  never  surrendered,  full  control  of  their  complete  in- 
ternal traffic,  it  was  not  intended  by  the  framers  of  the 
Constitution  that  any  part  of  interstate  commerce  should 
be  excluded  from  the  control  of  Congress." 

His  doctrine  might  be  summarized  by  saying  that  since 
the  States  were  not  allowed  any  control  over  interstate 
commerce,  and  since  the  regulation  of  corporations  in  their 
interstate  relations  constituted  regulation  of  interstate  com- 
merce, or  rather  of  a  part  of  interstate  commerce,  the 
power  expressly  belonged  to  the  national  government.  As 
will  be  seen,  this  later  through  the  effort  of  Justice  Harlan 
became  the  doctrine  of  the  court.     By  that  time  much  mis- 


INTERSTATE   AND   FOREIGN    COMMERCE  9/ 

chief  had  been  done,  and  the  court  had  lost  the  opportunity 
of  cutting  at  the  root  of  the  growing  evil. 

In  the  case  just  discussed,  Justice  Harlan  stood  alone 
against  the  other  members  of  the  court.  The  next  time  he 
is  found  taking  an  active  part  in  a  decision  on  this  point  is 
in  the  case  of  the  Northern  Securities  Co.  v.  United  States, 
193  U.  S.  197.  In  several  cases  prior  to  that,  however,  the 
question  had  come  up,  but  in  not  quite  so  aggravated  a  form. 
From  only  one  of  those  cases  did  Justice  Harlan  dissent, 
and  then  with  no  opinion  stated.* 

In  the  case  of  the  Northern  Securities  Co.  v.  United 
States  Justice  Harlan  asserted,  mainly  in  an  affirmative  way, 
the  principles  which  he  had  developed  in  his  dissent  from  the 
E.  C.  Knight  case.  The  discussion  is  somewhat  long,  but 
much  of  the  space  is  taken  up  in  answering  some  of  the 
arguments  presented  by  the  attorneys  for  the  corporation, 
which  answers  are  of  no  especial  concern  here.  Quota- 
tions from  this  opinion  will  show  how  it  served  to  over- 
throw the  condemnable  doctrine  promulgated  in  the  E.  C. 
Knight  case. 

The  Northern  Securities  case  was  very  similar  to  the  E. 
C.  Knight  case,  the  main  difference  being  that  the  monopo- 
lization was  of  railroads  instead  of  sugar.  The  suit,  there- 
fore, was  against  several  railroad  companies  which  had 
arranged  to  put  a  stop  to  competition  in  the  north  and  north- 
western sections  of  the  United  States  by  controlling  under 
one  head  practically  all  of  the  railroads  in  the  north  and 
northwestern  part  of  the  United  States.  The  question  to 
be  determined  was  whether  such  a  combination  amounted 
to  a  restraint  of  trade  forbidden  by  the  act  of  1890,  and 
whether  the  United  States  had  the  power  to  command  these 
corporations  to  refrain  from  their  proposed  combination. 
The  decision  had  been  rendered  against  the  Northern  Se- 

*U.  S.  V.  Trans-Missouri  Freight  Assoc,  166  U.  S.  290;  U.  S.  v. 
Joint  Traffic  Assoc,  171  U.  S.  505;  Hopkins  v,  U.  S.,  171  U.  S.  578; 
Addyston  Pipe  and  Steel  Co.  v.  U.  S.,  175  U>  S.  211 ;  Montague  and 
Company  v.  Lowry,  193  U.  S.  38 ;  Anderson  v.  U.  S.,  171  U.  S.  604 
(combination  legal,  Justice  Harlan  dissented). 


98        CONSTITUTIONAL   DOCTRINES    OF    JUSTICE    HARLAN 

curities  Company  in  the  circuit  court  of  the  United  States 
for  the  district  of  Minnesota,  and  this  decision  was  affirmed 
by  the  Supreme  Court,  speaking  through  Justice  Harlan. 

The  following  quotation  gives  the  general  import  of  the 
majority  opinion:  "The  mere  existence  of  such  a  combina- 
tion, and  the  power  acquired  by  the  holding  company  as  its 
trustee,  constitute  a  menace  to,  and  a  restraint  upon,  that 
freedom  of  commerce  which  Congress  intended  to  recog- 
nize and  protect,  and  which  the  public  is  entitled  to  have 
protected.  If  such  combination  be  not  destroyed,  all  the 
advantages  that  would  naturally  come  to  the  public  under 
operation  of  the  general  laws  of  competition,  as  between 
the  Great  Northern  and  Northern  Pacific  Railway  Com- 
panies, will  be  lost,  and  the  entire  commerce  of  the  im- 
mense territory  in  the  northern  part  of  the  United  States 
between  the  Great  Lakes  and  the  Pacific  at  Puget  sound 
will  be  at  the  mercy  of  a  single  holding  corporation,  organ- 
ized in  a  State  distant  from  the  people  of  that  territory." 

In  answer  to  the  contention  that  an  affirmative  decree  in 
this  case  would  make  ownership  of  stock  in  a  state  railroad 
corporation  a  matter  of  interstate  commerce,  if  that  rail- 
road were  engaged  in  interstate  traffic,  the  following  reply 
is  given :  "  Such  statements  as  to  issues  in  this  case  are, 
we  think,  wholly  unwarranted,  and  are  very  wide  of  the 
mark;  it  is  setting  up  mere  men  of  straw  to  be  easily 
stricken  down.  We  do  not  understand  that  the  govern- 
ment makes  any  such  contentions  or  takes  any  such  posi- 
tions as  those  statements  imply.  It  does  not  contend  that 
Congress  may  control  the  mere  acquisition  or  the  mere 
ownership  of  stock  in  a  State  corporation  engaged  in  inter- 
state commerce.  Nor  does  it  contend  that  Congress  can 
control  the  organization  of  state  corporations  authorized 
by  their  charters  to  engage  in  interstate  and  international 
commerce.  But  it  does  contend  that  Congress  may  protect 
the  freedom  of  interstate  commerce  by  any  means  that  are 
appropriate  and  that  are  lawful,  and  not  prohibited  by  the 
Constitution.     It  does  contend  that  no  state  corporation  can 


INTERSTATE   AND   FOREIGN    COMMERCE  99 

stand  in  the  way  of  the  enforcement  of  the  national  will, 
legally  expressed." 

Another  very  telling  blow  at  the  contention  that  this  doc- 
trine would  be  a  detriment  to  state  autonomy  is  this :  "  If  a 
state  may  strike  down  combinations  that  restrain  its  do- 
mestic commerce  by  destroying  free  competition  among 
those  engaged  in  such  commerce,  what  power,  except  that 
of  Congress,  is  competent  to  protect  the  freedom  of  inter- 
state and  international  commerce  when  assailed  by  a  com- 
bination that  restrains  such  commerce  by  stifling  compe- 
tition among  those  engaged  in  it?  .  .  .  The  argument  in 
behalf  of  the  defendants  necessarily  leads  to  such  results, 
and  places  Congress,  although  invested  by  the  people  of  the 
United  States  with  full  authority  to  regulate  interstate  and 
international  commerce,  in  a  condition  of  helplessness,  so 
far  as  the  protection  of  the  public  against  such  combination 
is  concerned." 

As  is  seen,  even  by  the  few  quotations  given,  the  de- 
cision in  this  case  was  a  great  one.  Its  arguments  were 
convincing,  its  spirit  showed  a  largeness  of  soul  not  often 
found  among  judges,  and  it  sets  a  precedent  that  needed 
to  be  set  much  earlier.  From  that  time  on,  therefore,  the 
monstrous,  soulless  corporations  have  had  over  them  the 
strongest  power  that  this  government  affords.  And,  as 
has  been  seen,  our  thanks  are  largely  due  Justice  Harlan 
for  this  evidently  correct  interpretation  of  the  Constitution, 
for  any  other  would  simply  have  said  that  our  constitution 
contained  a  grave  flaw.  Of  course  the  situation  could  have 
been  met  with  a  constitutional  amendment,  but  only  after 
much  more  mischief  had  been  done. 

The  two  cases  which  have  caused  so  much  comment  of 
late  do  not  bear  upon  the  present  subject.  They  are  the 
cases  of  the  Standard  Oil  Co.  v.  United  States,  221  U.  S.  i, 
and  the  United  States  v.  American  Tobacco  Co.,  221  U. 
S.  106.  Although  Justice  Harlan  concurred  in  the  conclu- 
sions arrived  at  in  these  cases,  he  dissented  from  the  action 
of  the  court  in  reading  the  word  "  unreasonable "  into  the 


lOO    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

Act  of  1890.  With  him  that  was  judicial  legislation. 
These  cases  will,  therefore,  be  discussed  under  that  topic.'' 

From  the  cases  given  it  seems  possible  to  gain  a  suffi- 
ciently clear  conception  of  Justice  Harlan's  doctrine  con- 
cerning the  so-called  Sherman  Anti-Trust  Act.  Though 
the  court  has  not  in  all  respects  accepted  his  interpretation, 
it  has  practically  done  so.  The  weight  of  his  influence  on 
this  point  has  probably  been  more  significant  than  upon 
any  other  burning  question.  Amidst  the  wild  political  dis- 
cussions he  did  not  lose  his  balance,  but  always  held  closely 
to  the  interpretation  of  both  the  Constitution  and  an  act  of 
Congress,  and  on  this  subject,  at  least,  demonstrated  that 
the  wisest  thing  for  the  court  to  do  is  to  interpret  and 
apply  laws,  not  to  change  them.  If  Justice  Harlan's  doc- 
trine had  from  the  first  predominated,  the  so-called  twilight 
zone  would  have  been  much  less  in  evidence. 

Taxation. — According  to  the  recognized  law,  any  owner, 
whether  individual  or  State,  may  impose  a  charge  for  the 
use  of  a  wharf.  This  charge,  however,  cannot  be  too  high, 
and  must  be  levied  with  a  view  to  keeping  up  the  wharf, 
otherwise  it  becomes  a  burden  upon  interstate  commerce 
and  hence  unconstitutional.  This  distinction  sometimes 
gives  rise  to  very  fine  differentiations  in  order  to  ascertain 
what  is  simply  a  wharfage  charge,  and  what  amounts  to  a 
duty  of  tonnage  or  poundage. 

There  seems  to  be  only  one  case  in  which  Justice  Harlan 
was  at  variance  with  the  court  on  this  question.  This  was 
the  case  of  Parkersburg  and  Ohio  River  Transportation 
Co.  V.  Parkersburg,  107  U.  S.  691.  The  city  of  Parkers- 
burg, West  Virginia,  levied  under  the  guise  of  wharfage  a 
tax  upon  vessels  according  to  their  capacity  and  the  quanti- 
ties of  freight  loaded  or  unloaded.  The  Parkersburg  and 
Ohio  River  Transportation  Company  entered  suit  in  the 
circuit  court  of  the  United  States  for  that  district,  on  the 
plea  that  the  levy  amounted  to  a  duty  of  tonnage  and  that 
it  was  a  restriction  upon  interstate  commerce.     The  circuit 

**  Pages  199-202. 


INTERSTATE   AND   FOREIGN    COMMERCE  lOI 

court  held  that  the  levy  was  a  wharfage  charge.  The  Su- 
preme Court  affirmed  the  decision,  reinforcing  the  decree 
with  complicated  reasoning. 

The  core  of  the  decision  is  found  in  the  following  quo- 
tation :  "  Now  wharves,  levees  and  landing  places  are  es- 
sential to  commerce  by  water,  no  less  than  a  navigable 
channel  and  a  clear  river.  But  they  are  attached  to  the 
land;  they  are  private  property,  real  estate;  and  they  are 
primarily,  at  least,  subject  to  the  local  state  laws.  Con- 
gress has  never  yet  interfered  to  supervise  their  adminis- 
tration; it  has  hitherto  left  this  exclusively  to  the  States. 
There  is  little  doubt,  however,  that  Congress,  if  it  saw  fit, 
in  case  of  prevailing  abuses  in  management  of  wharf  prop- 
erty, .  .  .  might  interpose  and  make  regulations  to  prevent 
such  abuses.  When  it  shall  have  done  so,  it  will  be  time 
enough  for  the  courts  to  put  its  regulations  into  effect  by 
judicial  proceedings  properly  instituted.  But  until  Congress 
has  acted,  the  courts  of  the  United  States  cannot  assume 
jurisdiction  over  the  subject  as  a  matter  of  Federal  cogniz- 
ance. It  is  the  Congress,  not  the  judicial  department,  to 
which  the  constitution  has  given  power  to  regulate  com- 
merce with  foreign  nations  and  among  the  States.  The 
courts  can  never  take  initiative  on  this  subject." 

From  this  it  is  seen  that  the  court  asserted  that  it  was 
unwilHng  to  take  cognizance  of  a  case  of  this  kind  in  the 
absence  of  a  statute  of  Congress.  But  it  intimated  further 
on  that  if  the  charge  were  extortionate  it  might  take  juris- 
diction, but  that  ordinarily  such  things  are  in  charge  of  the 
State  unless  Congress  has  acted  on  the  subject. 

Justice  Harlan  disagreed  with  this  reasoning.  With  him 
the  Constitution  was  express  in  forbidding  tonnage  and 
poundage,  and  he  thought  that  it  was  for  the  court  to  decide 
whether  or  not  any  charge  made  by  any  state  agency 
amounted  to  tonnage  or  poundage,  or  whether  it  was  simply 
wharfage.  In  this  case  he  contended  that  the  levy  was  a 
duty  of  tonnage,  and  hence  was  unconstitutional.  "It  is 
conceded  by  the  demurrer  to  the  bill  that,  from  these  fees, 


I02     CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

the  City  has  long  since  been  re-imbursed  for  the  actual  cost 
of  constructing  the  wharf;  that  the  amount,  annually  col- 
lected for  its  use  by  boats,  is  largely  in  excess  of  any  ex- 
pense incurred  in  its  maintenance  and  repair;  that  the 
wharf  has  been  permitted  to  become  and  remain  in  bad 
repair,  at  times  almost  unfit  for  use;  that  nearly  all  the 
money  so  raised  is  applied  by  the  City  to  increase  its  general 
revenue,  and  to  payment  of  its  indebtedness;  lastly,  that 
the  wharfage  charges  are  unreasonable  in  amount  and 
oppressive.  .  .  . 

"  In  the  opinion  of  the  court,  a  duty  of  tonnage  is  de- 
fined to  be  a  charge,  tax  or  duty  on  a  vessel  for  the  mere 
privilege  of  entering  or  lying  in  a  port.  The  City  of  Park- 
ersburg  cannot,  therefore,  constitutionally  impose  a  charge, 
tax  or  duty  upon  or  for  the  exercise  of  that  privilege.  Now, 
do  the  Constitution  and  the  existing  laws  of  the  United 
States  extend  their  protection  no  further  than  to  secure  the 
bare,  naked  right  of  entering  a  port  free  from  local  burdens 
or  duties  upon  its  exercise?  May  not  the  boat,  in  virtue 
of  the  Constitution  and  existing  laws,  also  land  at  any 
wharf,  at  least  at  any  public  wharf,  on  the  Ohio  River  for 
the  purpose  of  discharging  and  receiving  freight  and  pas- 
sengers? Of  what  value  would  be  the  right  to  enter  the 
port  without  the  privilege  of  landing  its  passengers  and 
freight?  Is  not  the  substantial  privilege  of  landing  pas- 
sengers and  freight  necessarily  involved  in  the  right  of 
entering  the  port?  If  so,  it  would  seem  that  the  right  to 
land  a  boat  at  a  public  wharf  on  a  navigable  water  of  the 
United  States,  is  as  fully  protected  by  the  Constitution  and 
the  existing  laws  of  the  United  States,  as  of  entering  the 
port.  A  charge,  tax  or  duty  imposed  upon  the  exercise  of 
the  right  to  land  is,  consequently,  for  every  practical  pur- 
pose, as  much  a  duty  of  tonnage  as  a  charge,  tax  or  duty 
upon  the  privilege  of  entering  the  port." 

His  conclusion  is  as  follows :  "  The  opinion  of  the  court, 
I  repeat,  rests  necessarily  upon  the  ground  that  the  en- 
forced exaction  and  collection  by  a  municipal  corporation 


INTERSTATE   AND   FOREIGN    COMMERCE  IO3 

of  unreasonable  compensation  for  the  use  of  its  wharf  by  a 
boat,  duly  enrolled  and  licensed  under  the  laws  of  the  United 
States,  and  engaged  in  commerce  upon  the  Ohio  River, 
does  not  infringe  or  impair  any  right  given  or  secured 
either  by  the  Constitution  or  the  existing  laws  of  the  United 
States.  To  that  proposition  I  am  unable  to  give  my  assent." 
It  is  plain,  therefore,  that  Justice  Harlan  could  not  see 
how  a  levy  could  be  a  wharfage  charge  when  none  of  the 
proceeds  were  applied  to  the  up-keep  of  the  wharf,  or  how 
it  could  fail  to  be  a  tonnage  charge  when  the  rate  was  speci- 
fied at  so  much  a  ton.  Nor  could  he  see  how  the  court 
could  refuse  to  pass  upon  the  constitutionality  of  an  action 
when  that  action  clearly  involved  the  interpretation  of  a 
clause  of  the  Constitution.  To  summarize  his  doctrine  on 
this  matter,  it  might  be  said  that  he  believed  that  it  was 
within  the  jurisdiction  of  the  court,  regardless  of  the  fact 
that  Congress  had  not  acted,  to  decide  in  any  case  whether 
a  fee  charged  for  the  use  of  a  wharf  amounted  to  a  duty 
of  tonnage  or  poundage  or  a  restriction  upon  interstate 
commerce,  or  whether  it  was  simply  a  levy  to  cover  the  ex- 
pense of  the  construction  and  repair  of  the  wharf. 


In  the  case  of  Ficklen  v.  Shelby  County  Taxing  District, 
145  U.  S.  I,  is  found  a  very  interesting  dissent  on  the  part 
of  Justice  Harlan,  in  which  he  accused  the  court  of  allow- 
ing discrimination  in  taxation,  and  discrimination  of  a  kind 
that  amounted  to  a  burden  on  interstate  commerce.  An 
out-of-the-State  concern  had  representatives  in  Shelby 
County,  Tennessee.  These  representatives  were  simply 
agents,  having  a  definite  location  for  the  exhibition  of  their 
wares  and  for  taking  orders  of  goods  to  be  shipped  into  the 
State.  In  addition  to  a  license  fee  of  fifty  dollars,  the 
State,  or  rather  the  county,  undertook  to  levy  a  tax  of  two 
and  a  half  per  cent  on  the  profits  made  by  one  of  these 
representatives.  The  plaintiff  set  up  the  plea  that  such  a 
tax  by  the  State  amounted  to  a  burden  upon  interstate  com- 


I04    CONSTITUTIONAL   DOCTRINES    OF    JUSTICE    HARLAN 

merce.  The  court  held  that  this  was  not  such  a  burden,  but 
that  a  State  has  power  to  tax  all  property  having  a  situs 
within  its  limits  whether  it  is  employed  in  interstate  com- 
merce or  not. 

"  No  doubt  can  be  entered  of  the  right  of  a  state  Legis- 
lature to  tax  trades,  professions,  and  occupations,  in  the 
absence  of  inhibition  in  the  state  constitution  in  that  regard, 
and  where  a  resident  citizen  engages  in  general  business 
subject  to  a  particular  tax,  the  fact  that  the  business  done 
chances  to  consist,  for  the  time  being,  wholly  or  partially 
in  negotiating  sales  between  resident  and  non-resident  mer- 
chants of  goods  situated  in  another  State  does  not  neces- 
sarily involve  the  taxation  of  interstate  commerce,  forbidden 
by  the  Constitution." 

Justice  Harlan  dissented  from  this  ruling.  At  the  outset 
he  said:  "It  seems  to  me  that  the  opinion  and  judgment  in 
this  case  are  not  in  harmony  with  the  numerous  decisions 
of  this  court.  I  do  not  assume  that  the  court  intends  to 
modify  or  overrule  any  of  those  cases,  because  no  such 
purpose  is  expressed.  And  yet  I  feel  sure  that  the  present 
decision  will  be  cited  as  having  that  effect." 

He  said  further:  "The  principles  announced  in  these 
cases,  if  fairly  applied  to  the  present  case,  ought,  in  my 
judgment,  to  have  led  to  a  conclusion  different  from  that 
reached  by  the  court.  Ficklen  took  out  a  license  as  mer- 
chandise broker  and  gave  bond  to  make  a  return  of  the 
gross   commissions   earned   by  him.     His   commissions   in 

1887  were  wholly  derived  from  interstate  business,  that  is, 
from  mere  orders  taken  in  Tennessee  for  goods  in  other 
states,  to  be  shipped  into  that  State,  when  the  orders  were 
forwarded  and  filled.  He  was  denied  a  license  for  1888 
unless  he  first  paid  two  and  a  half  per  cent  on  his  gross 
commissions.  And  the  court  holds  that  it  was  consistent 
with  the  Constitution  of  the  United  States  for  the  local 
authorities  of  the  taxing  district  of  Shelby  County  to  make 
it  a  condition  precedent  to  Ficklen's  right  to  a  license  for 

1888  that  he  should  pay  the  required  per  cent  of  the  gross 


INTERSTATE   AND   FOREIGN    COMMERCE  IO5 

commissions  earned  by  him  in  1887  in  interstate  business. 
This  is  a  very  clever  device  to  enable  the  taxing  district  of 
Shelby  County  to  sustain  its  government  by  taxation  upon 
interstate  commerce." 

The  following  distinctions  are  drawn  in  conclusion :  "  The 
result  of  the  present  decision  is,  that  while  under  Robbins  v. 
Shelby  County  Tax.  Dist.,  a  license  tax  may  not  be  imposed 
in  Tennessee  upon  drummers  for  soliciting  there  the  sale 
of  goods  to  be  brought  from  other  states;  while  under 
Leloup  V.  Port  of  Mobile,  a  local  license  tax  cannot  be  im- 
posed in  respect  to  telegrams  between  points  in  different 
states;  and  while  under  Stoutenburgh  v.  Hennick,  com- 
mercial agents  cannot  be  taxed  in  the  District  of  Columbia 
for  soliciting  there  the  sale  of  goods  to  be  brought  into  the 
District  from  one  of  the  states;  the  taxing  district  of 
Shelby  County  may  require,  as  a  condition  of  granting  a 
license  as  merchandise  broker,  that  the  applicant  shall  pay  a 
license  fee,  and,  in  addition  2^  per  cent  upon  the  gross 
commissions  received,  not  only  in  the  business  transacted 
by  him  that  is  wholly  domestic,  but  in  that  which  is  wholly 
interstate." 

The  last  quotations  show  clearly  the  ground  of  Justice 
Harlan's  dissent.  He  could  see  no  reason  for  refusing  at 
one  time  to  allow  the  State  to  tax  persons  in  one  category, 
and  at  a  later  date  allowing  it  to  tax  another  person  in  a 
similar  situation.  It  must  be  admitted,  however,  that  the 
situations  were  only  apparently  similar.  The  dissent  was 
due  to  the  fact  that  the  tax  was  in  effect  upon  interstate 
trade,  and  only  interstate  trade,  for  proof  was  present  that 
the  agent  in  question  had  done  no  intrastate  business.  With 
the  court  the  fact  that  the  man  did  only  interstate  business 
was  immaterial,  since  his  license  granted  him  the  right  to 
sell  goods  produced  within  the  State.  Justice  Harlan 
contended,  however,  that  since  the  man  in  fact  did  no  in- 
trastate business  he  was  beyond  the  taxing  power  of  the 
State. 


I06    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

The  question  of  state  taxation  of  federal  franchises  is  a 
complex  one.  It  appears,  however,  that  the  Supreme  Court 
has  done  much  to  complicate  instead  of  simplify  the  situa- 
tion. The  case  of  the  Central  Pacific  R.  Co.  v.  California, 
162  U.  S.  91,  will  bear  out  this  assertion.  This  case  came 
to  the  Supreme  Court  by  writ  of  error  from  the  supreme 
court  of  California.  According  to  the  railroad  company's 
estimate,  its  taxable  property  in  the  State  of  California 
amounted  to  $12,273,785,  while  according  to  the  estimate 
of  the  Board  of  Equalization  the  amount  was  $18,000,000. 
The  railroad  company  objected  because  the  Board  of  Equal- 
ization had  included  within  its  assessment  the  value  of  the 
company's  federal  franchise  to  engage  in  the  business  of 
interstate  commerce,  and  said  that  this  was  unconstitu- 
tional in  that  it  was  a  burden  laid  by  the  State  upon  a 
federal  agency.  The  court  decided  against  the  railroad 
company  upon  the  following  grounds:  The  rights  and 
privileges  of  doing  business  have  value  as  taxable  property, 
and  in  addition  to  the  federal  franchise  there  was  a  state 
franchise,  admitted  by  the  company.  Upon  this  admitted 
franchise  the  State  could  place  a  tax.  Since  the  express 
valuation  of  the  state  franchise  was  not  given,  the  extra 
assessment  could  be  taken  to  mean  a  tax  by  the  State  upon 
the  state  franchise. 

Justice  Harlan  did  not  agree  with  this  line  of  argument. 
He  felt  that  if  the  State  were  allowed  to  tax  as  highly  as  it 
pleased  the  state  franchise  of  a  federal  agency,  that  power 
might  enable  the  State  in  certain  instances  seriously  to 
hamper  the  performance  of  federal  functions.  He  said: 
''  If  the  assessment  in  question  had  been  separately  upon 
the  visible  property  of  the  company,  as  distinguished  from 
its  franchises,  the  case  would  have  presented  a  different 
aspect;  and  we  should  then  have  been  compelled  to  re- 
examine the  question  as  to  the  extent  to  which  the  property 
of  the  company,  used  in  accomplishing  the  objects  designed 
by  Congress,  could  be  taxed  by  the  State.  But,  as  the 
opinion  of  the  court  shows,  the  present  assessment  was 


INTERSTATE   AND   FOREIGN    COMMERCE  10/ 

upon  the  franchise,  railway,  roadbed,  rails,  and  rolling 
stock  of  the  company  without  stating  separately  their  re- 
spective values.  That  which  was  invalid  cannot  be  sep- 
arated from  that  which  was  valid.  So  that  the  question  is 
presented  whether  it  is  competent  for  the  State  to  sell  for 
its  taxes  the  franchise  of  the  company.  If  it  cannot  the 
whole  assessment  is  void. 

"  I  cannot  agree  that  the  franchise  which  the  corporation 
has  received  from  the  United  States  and  the  state  can  be 
assessed  by  the  state  for  taxation  along  with  its  roadbed, 
right  of  way,  etc.,  and  then  sold.  That  is  taxation  of  one 
of  the  instrumentalities  of  the  national  government,  which 
no  state  may  do  without  the  consent  of  the  Congress  of  the 
United  States.  Of  course,  this  corporation  ought  to  con- 
tribute its  due  share  to  support  the  government  of  each 
state  within  whose  limits  its  property  is  situated  and  its 
privileges  exercised.  But  it  is  for  Congress  to  prescribe 
the  rule  of  taxation  to  be  applied  at  least  to  the  franchises 
of  the  corporation,  which,  although  created  by  the  state,  is 
as  much  a  federal  agency  as  if  it  had  been  created  a  cor- 
poration by  national  enactment.  It  has  never  heretofore 
been  recognized  that  a  state  could,  without  the  assent  of 
Congress,  sell  for  its  taxes  the  franchises,  rights,  and  priv- 
ileges employed,  under  the  authority  of  the  national  gov- 
ernment, to  accomplish  national  objects,  particularly  when 
such  franchises,  rights,  and  privileges  are  under  mortgage 
to  secure  the  government  specified  liabilities." 

Justice  Harlan  held  that  if  there  was  a  federal  franchise 
and  at  the  same  time  a  state  franchise,  the  State  should  not 
be  allowed  to  tax  the  state  franchise  without  a  separate 
specification  as  to  what  was  the  rate  and  amount  of  the  tax 
on  the  state  franchise;  and  above  all  the  State  should  not 
be  allowed  the  power  to  hamper  by  taxation  a  federal  in- 
strumentality. 

Justice  Harlan  has  differed  from  the  court  in  two  inter- 
esting cases  with  reference  to  export  taxes,  in  one  case  say- 


I08     CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

ing  that  what  the  court  claimed  was  a  tax  upon  exports 
was  not  one,  and  in  the  other  case  arguing  that  what  the 
court  asserted  was  not  a  tax  on  exports  was  one. 

The  first  of  these  cases  is  that  of  Fairbank  v.  United 
States,  i8i  U.  S.  283.  Here  was  contested  the  stamp  duty 
levied  upon  various  forms  of  commercial  paper  to  help 
defray  the  expenses  of  the  Spanish-American  War,  as  ap- 
pHed  to  bills  of  lading  accompanying  shipments  to  foreign 
ports.  The  plea  was  set  up  that  a  tax  of  ten  cents  on  every 
such  bill  of  lading  amounted  to  a  duty  upon  exports,  for- 
bidden by  the  Constitution  in  Article  i.  Par.  9,  which  reads 
that  "no  tax  or  duty  shall  be  laid  on  any  article  exported 
from  any  State." 

The  court  with  a  majority  of  one  declared  that  such  a  tax 
amounted  to  a  duty  on  exports  in  that  the  bill  of  lading 
was  an  essential  accompaniment  of  articles  of  commerce. 
"  We  are  of  opinion  that  a  stamp  tax  on  a  foreign  bill  of 
lading  is  in  substance  and  effect  equivalent  to  a  tax  on  the 
articles  included  in  that  bill  of  lading,  and,  therefore,  a  tax 
or  duty  on  exports,  and  in  conflict  with  the  constitutional 
prohibition." 

Justice  Harlan,  with  whom  concurred  Justices  Gray, 
White,  and  McKenna,  opposed  this  view.  The  grounds 
upon  which  they  rested  their  arguments  were  two.  In  the 
first  place,  they  held  that  since  it  had  been  the  practice  of 
the  nation  since  1797  at  intervals  to  impose  such  a  stamp 
tax,  it  was  too  late  now  to  challenge  the  constitutionality  of 
it.  In  the  second  place,  a  simple  tax  of  ten  cents  upon  a 
bill  of  lading  of  a  large  shipment  of  goods  could  not  in  fact 
amount  to  a  duty  upon  exports,  but  was  a  tax  on  the  paper. 

In  support  of  the  first  contention  the  several  instances  in 
which  such  a  tax  had  been  levied  and  collected  were  cited, 
and  the  fact  was  urged  that  not  before  within  the  century 
had  they  been  even  questioned.  It  should  be  mentioned 
that  the  majority  had  not  passed  lightly  over  this  point,  as  is 
shown  by  the  following  words :  "  It  must  be  borne  in  mind 
also  in  respect  to  this  matter  that  during  the  first  period 


INTERSTATE   AND   FOREIGN    COMMERCE  IO9 

exports  were  limited,  and  the  amount  of  the  stamp  duty  was 
small,  and  that  during  the  second  period  we  were  passing 
through  the  stress  of  a  great  civil  war,  or  endeavoring  to 
carry  its  enormous  debt;  so  that  it  is  not  strange  that  the 
legislative  action  in  this  respect  passed  unchallenged.  In- 
deed, it  is  only  of  late  years,  when  the  burdens  of  taxation 
are  increasing  by  reason  of  the  great  expenses  of  govern- 
ment, that  the  objects  and  modes  of  taxation  have  become 
a  matter  of  special  scrutiny.  But  the  delay  in  presenting 
these  questions  is  no  excuse  for  not  giving  them  full  con- 
sideration and  determining  them  in  accordance  with  the 
true  meaning  of  the  Constitution." 

The  other  point,  which  seems  to  be  the  stronger,  was 
not  answered  by  the  majority,  though  they  alluded  to  it 
with  the  assertion  that  the  power  to  tax  is  the  power  to 
destroy.  The  following  quotation  will  show  the  reasoning 
of  the  minority  in  this  regard:  "It  is  said  that  the  power 
to  tax  is  the  power  to  destroy,  and  that  if  Congress  can 
impose  a  stamp  tax  of  lo  cents  upon  the  vellum,  parchment, 
or  paper  on  which  is  written  a  bill  of  lading  for  articles  to 
be  exported  from  a  state,  it  could  as  well  impose  a  duty  of 
$5,000,  and  thereby  indirectly  tax  the  articles  intended  for 
export.  That  conclusion  would  by  no  means  follow.  A 
stamp  duty  has  now,  and  has  had  for  centuries,  a  well- 
defined  meaning.  It  has  always  been  distinguished  from 
an  ordinary  tax  measured  by  the  value  or  kind  of  the  prop- 
erty taxed.  If  Congress,  in  respect  of  a  bill  of  lading  for 
articles  to  be  exported,  had  imposed  a  tax  of  $5,000  for  and 
in  respect  of  the  vellum,  parchment,  or  paper  upon  which 
such  bill  was  written,  the  courts,  looking  beyond  form  and 
considering  substance,  might  well  have  held  that  such  an 
act  was  contrary  to  the  settled  theory  of  stamp-tax  laws, 
and  that  the  purpose  and  necessary  operation  of  such  legis- 
lation was,  in  violation  of  the  Constitution,  to  tax  the 
articles  specified  in  such  bill,  and  not  to  impose  simply 
a  stamp  duty.  Here,  the  small  duty  imposed,  without  ref- 
erence to  the  kind,  quantity,  or  value  of  the  articles  ex- 
8 


no    CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

ported,  renders  it  certain  that  when  Congress  imposed  such 
duty  specifically  on  the  vellum,  parchment,  or  paper  upon 
which  the  bill  of  lading  was  written  or  printed,  it  meant 
what  it  so  plainly  said;  and  no  ground  exists  to  impute  a 
purpose  by  indirection  to  tax  the  articles  exported." 

An  interesting  contrast  to  the  Fairbank  case  is  found 
in  Cornell  v.  Coyne,  192  U.  S.  418.  Here  the  court  upheld 
a  statute  which  placed  a  direct  tax  of  one  per  cent  per 
pound  on  filled  cheese.  The  contention  was  raised  by  Cor- 
nell, the  manufacturer  of  the  cheese,  that  this  tax  did  not 
apply  to  that  part  of  his  products  which  was  intended  ex- 
pressly for  filling  foreign  orders.  In  spite  of  the  decision  in 
the  Fairbank  case,  however,  the  court  did  not  sustain  his 
contention.  No  special  argument  was  presented  except  that 
the  cheese  before  shipment  was  just  like  other  cheese  which 
was  intended  for  home  consumption,  and  if  part  of  it  had 
to  bear  a  tax  all  of  it  should.  "  The  true  construction  of  the 
constitutional  provision,"  said  the  judge,  "  is  that  no  burden 
by  way  of  tax  or  duty  be  cast  upon  the  exportation  of 
articles,  and  does  not  mean  that  articles  exported  are  re- 
lieved from  prior  ordinary  burdens  of  taxation  which  rest 
upon  all  property  similarly  situated.  The  exemption  at- 
taches to  the  export,  and  not  to  the  article  before  ex- 
portation." 

Justice  Harlan  opposed  the  reasoning  of  the  court  on  two 
grounds,  in  the  first  place,  because  of  the  possibility  of 
great  abuse  developing  from  such  a  decree ;  and,  in  the  sec- 
ond place,  because  it  was  inconsistent  with  the  doctrine 
established  in  the  Fairbank  case,  from  which,  it  is  to  be 
noted,  he  dissented.  Of  the  first  point  he  said  this :  "  The 
result  would  be  that  Congress,  in  time  of  peace,  and  by 
means  of  taxation,  could  bring  about  a  condition  of  utter 
occlusion  between  the  manufacturers  of  this  country  and 
the  markets  of  other  countries.  Indeed,  the  several  states 
could  bring  about  that  result  by  taxation;  for  if  an  ar- 
ticle manufactured  for  exportation  and  which  was  pre- 
pared for  exportation  as  soon  as  the  manufacture  was  com- 


INTERSTATE   AND   FOREIGN    COMMERCE  III 

pleted,  is  not  an  export  from  the  moment  such  preparation 
was  begun,  then  a  state  may  impose  a  tax  upon  it  as  prop- 
erty  and  compel  the  payment  thereof  before  the  article  is 
removed  from  its  limits  for  exportation.  I  do  not  think 
that  the  framers  of  the  Constitution  contemplated  such  a 
condition  as  possible." 

As  regards  the  second  point  he  made  the  following  asser- 
tion :  "  In  the  Fairbank  case  the  court  held  that  a  mere 
stamp  tax  on  a  bill  of  lading  taken  at  the  time  articles 
were  shipped  from  a  state  to  a  foreign  country  was  a  tax 
on  the  articles  themselves  as  exports,  and  was  forbidden  by 
the  constitutional  provision  that  no  tax  or  duty  shall  be 
laid  on  articles  exported  from  any  state.  It  is  now  held 
that  a  tax  on  articles  admittedly  manufactured  only  for 
exportation,  and  not  for  sale  or  consumption  in  this  country, 
and  which  are  exported  as  soon  as  they  can  be  made  ready 
for  shipment,  after  the  completion  of  manufacture,  in  exe- 
cution of  contracts  entered  into  prior  to  the  commencement 
of  manufacture,  is  a  tax  on  the  articles  themselves  as  prop- 
erty, and  not  on  them  as  exports.  .  .  .  Thus,  despite  the 
express  prohibition  of  all  taxes  or  duties  upon  articles  ex- 
ported from  the  states,  Congress  is  recognized  as  having 
the  same  power  over  exports  from  the  several  states  as  it 
has  exercisd  over  .imports  from  foreign  countries.  I  do  not 
think  that  it  has  such  power." 

It  is  interesting  to  note  the  contrast  between  Justice  Har- 
lan's dissent  from  this  case  and  that  from  the  Fairbank 
case.  In  the  former  his  argument  was  that  the  tax  in  ques- 
tion could  not  properly  be  construed  to  be  a  tax  upon  ex- 
ports, because  it  was  so  small  that  it  was  impossible  that  it 
should  affect  the  price  of  the  article  exported.  In  this  case 
he  asserted  that  the  tax  could  not  be  construed  in  any  other 
way,  since  the  tax  of  one  cent  a  pound  on  the  exported 
cheese  necessarily  raised  the  price  that  much.  But  he 
seemed  not  to  recognize  that  the  tax  on  the  cheese  was  not 
placed  there  because  of  its  exportation.  If  the  tax  were  on 
the  export  because  it  was  an  export,  it  would  come  within 


112     CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

the  constitutional  provision;  otherwise  it  would  not.  Yet 
if  the  Constitution  is  to  be  interpreted  to  mean  that  the 
f  ramers  wished  to  encourage  exportation  by  exempting  ex- 
ports from  all  taxation,  Justice  Harlan's  doctrine  in  this 
case  will  have  to  be  accepted  as  correct.  Such  an  interpre- 
tation, however,  seems  to  be  a  discrimination  against  the 
home  consumer. 

A  very  hotly  contested  case  on  the  question  of  the  ability 
of  a  State  to  tax  the  gross  receipts^  of  a  railroad  doing  part 
interstate  and  part  intrastate  commerce  was  that  of  Galves- 
ton, Harrisburg,  and  San  Antonio  R.  Co.  v.  Texas,  210  U. 
S.  217.  In  this  case  was  contested  an  attempt  of  the  State 
of  Texas  to  impose  a  tax  "  equal  to  one  per  cent  of  their 
gross  receipts"  upon  railway  companies  whose  lines  lay 
wholly  within  the  State.  The  company  sought  to  have  re- 
funded money  which  it  had  paid  under  such  a  levy,  on  the 
plea  that  the  tax  constituted  a  burden  on  interstate  com- 
merce. 

The  argument  of  the  court,  speaking  through  Justice 
Holmes,  is  found  in  the  following  quotation :  "  We  are  of 
the  opinion  that  the  statute  levying  this  tax  does  amount  to 
an  attempt  to  regulate  commerce  among  the  States.  The 
distinction  between  a  tax  *  equal  to '  i  per  cent  of  gross  re- 
ceipts, and  a  tax  of  i  per  cent  of  the  same  seems  to  us 
nothing,  except  where  the  former  phrase  is  the  index  of  an 
actual  attempt  to  reach  the  property  and  to  let  the  interstate 
traffic  and  the  receipts  from  it  alone.  We  find  no  such  at- 
tempt or  anything  to  qualify  the  plain  inference  from  the 
statute  taken  by  itself.  On  the  contrary,  we  rather  infer 
from  the  judgment  of  the  state  court  and  from  the  argument 
on  behalf  of  the  state  that  another  tax  on  the  property  of 
the  railroad  is  upon  a  valuation  of  that  property  taken  as  a 
going  concern.  This  is  merely  an  effort  to  reach  the  gross 
receipts,  not  even  disguised  by  the  name  of  an  occupation 

^  For  a  significant  discussion  of  the  importance  of  this  subject, 
and  how  the  court  got  itself  out  of  the  evil  effects  of  this  decision, 
see  E.  R.  A.  Seligman,  Essays  in  Taxation,  ch.  viii,  pp.  264-270. 


INTERSTATE   AND   FOREIGN    COMMERCE  II 3 

tax,  and  in  no  way  helped  by  the  words  *  equal  to.' "  As 
is  seen,  the  contention  centered  around  the  wording  of  the 
statute,  that  the  tax  should  be  "  equal  to  "  the  gross  receipts. 
The  court  held  that  the  State  had  attempted  to  make  a  dis- 
tinction between  a  tax  equal  to  and  a  tax  on  the  gross  re- 
ceipts, in  other  words,  that  the  gross  receipts  should  be  a 
gauge  of  the  amount  of  business  done  in  the  State.  This 
distinction  was  considered  not  well  founded. 

Justice  Harlan,  however,  with  whom  concurred  Justices 
Fuller,  White,  and  McKenna,  thought  this  a  valid  tax.  Jus- 
tice Harlan's  reasons  for  not  considering  the  tax  an  im- 
proper burden  upon  interstate  commerce  are  mainly  two. 
First,  such  a  tax  did  constitute  an  occupation  tax  upon  busi- 
ness within  the  State  of  Texas,  which  had  been  declared  to 
be  constitutional  under  the  Texas  constitution.  "  Such  is 
the  construction  which  the  state  court  places  on  the  statute, 
and  that  construction  is  justified  by  the  words  used.  We 
have  the  authority  of  the  Supreme  Court  of  Texas  for  say- 
ing that  the  Constitution  of  that  state  authorizes  the  imposi- 
tion of  occupation  taxes  upon  natural  persons  and  upon  cor- 
porations, other  than  municipal,  doing  business  in  that  state. 
The  plaintiff  in  error  is  a  Texas  corporation,  and  it  cannot 
be  doubted  that  the  state  may  impose  an  occupation  tax  on 
one  of  its  own  corporations,  provided  such  a  tax  does  not 
interfere  with  the  exercise  of  some  power  belonging  to  the 
United  States." 

Second,  the  minority  held  that  the  burden  upon  inter- 
state commerce  would  be  incidental  and  not  direct,  and 
hence  would  be  constitutional,  as  the  court  had  often  pre- 
viously asserted.  "  The  state  only  measures  the  occupation 
tax  by  looking  at  the  entire  amount  of  the  business  done 
within  its  limits  without  reference  to  the  source  from  which 
the  business  comes.  It  does  not  tax  any  part  of  the  business 
because  of  its  being  interstate.  It  has  reference  equally  to 
all  kinds  of  business  done  by  the  corporation  in  the  state. 
Suppose  that  the  state,  as,  under  its  constitution  it  might  do, 
should  impose  an  income  tax  upon  railroad  corporations  of 


114    CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

its  own  creation,  doing  business  within  the  state,  equal  to  a 
given  per  cent  of  all  incomes  received  by  the  corporation 
from  its  business, — would  the  corporation  be  entitled  to  have 
excluded  from  computation  such  of  its  income  as  was 
derived  from  interstate  commerce  ?  Such  would  be  its  right 
under  the  principles  announced  in  the  present  case.  In  the 
case  supposed  the  income  tax  would,  under  the  principles  or 
rules  now  announced,  be  regarded  as  a  direct  burden  upon 
interstate  commerce.     I  cannot  assent  to  that  view." 

Justice  Harlan's  contention  was,  therefore,  that  the  gaug- 
ing of  the  amount  of  the  tax  by  the  gross  receipts  of  a  rail- 
road company  may  have  constituted  an  unsound  method 
■  of  taxation,  yet  since  it  could  not  be  fairly  said  to  be  a  direct 
burden  upon  interstate  commerce,  or  opposed  to  any  other 
prohibition  in  the  United  States  Constitution,  it  was  a  valid 
method.  This  seems  to  be  an  instance  when  the  liberality  of 
the  court  allowed  it  to  go  into  the  merit  of  a  state  law  and 
forbid  it,  even  though  there  was  not  a  really  fair  basis  upon 
which  to  rest  this  disallowance. 

Freedom  of  Contract. — The  question  of  freedom  of  con- 
tract might  well  be  discussed  under  a  different  heading,  but 
since  the  specific  cases  so  closely  concern  commerce,  the 
matter  may  be  taken  up  here.  There  are  two  cases  in  which 
the  principle  was  primarily  involved,  namely.  Hooper  v. 
California,  155  U.  S.  648,  and  Robertson  v.  Baldwin,  165 
U.  S.  275.  The  first  involved  a  contract  for  insurance 
which  was  entered  into  contrary  to  the  laws  of  California. 
The  second  involved  the  compulsion  of  seamen  to  perform 
their  contracts. 

The  facts  of  the  first  case  were  these :  Hooper  was  an 
agent  for  Johnson  and  Higgins,  duly  organized  brokers  in 
New  York,  who  conducted  an  office  in  California  according 
to  the  laws  of  that  State.  A  citizen  of  California  named 
Mott  applied  to  Hooper  to  procure  a  certain  amount  of  in- 
surance for  a  vessel,  named  the  Alliance.  This  Hooper  suc- 
ceeded in  doing  through  his  employers  in  the  city  of  New 
York,  who,  in  turn,  secured  the  insurance  from  a  Boston 


INTERSTATE   AND   FOREIGN    COMMERCE  I  I  5 

company  which  was  not  licensed  to  do  business  in  Califor- 
nia. The  question  was,  could  the  California  statute  which 
forbade  this  transaction  operate  in  this  case,  or  was  it  an  in- 
terference with  privileges  granted  under  the  Constitution, — 
granted  in  the  first  place  in  the  commerce  clause,  and  in  the 
second  place  in  the  fourteenth  amendment.  The  court, 
speaking  through  Justice  White,  answered  the  question  in 
the  negative.  Justice  Harlan  said  that  it  should  have  been 
answered  affirmatively. 

The  reasons  for  the  holding  of  the  court  may  be  briefly 
stated  as  follows:  First,  insurance  business  had  been  de- 
clared not  to  be  commerce,  and  the  exclusive  control  by 
Congress  of  marine  affairs  did  not  alter  this  declaration. 
Insurance  poHcies  were  no  more  articles  of  commerce  on 
the  sea  than  on  the  land.  "The  business  of  insurance  is 
not  commerce.  The  contract  of  insurance  is  not  an  instru- 
mentality of  commerce.  The  making  of  such  a  contract  is 
a  mere  incident  of  commercial  intercourse,  and  in  this  re- 
spect there  is  no  difference  whatever  between  insurance 
against  fire  and  insurance  against  *  the  perils  of  the  sea.' " 
Second,  Hooper  could  not  be  considered  an  agent  of  Mott  in 
procuring  this  insurance  for  him,  but  he  had  to  be  looked 
upon  as  an  agent  of  the  Boston  company,  which  was  not 
licensed  to  do  business  in  California,  and  hence  Mott  was 
not  unconstitutionally  deprived  of  his  liberty  of  contract. 
"If  the  contention  of  the  plaintiff  in  error  were  admitted, 
the  established  authority  of  the  state  to  prevent  a  foreign 
corporation  from  carrying  on  business  within  its  limits, 
either  absolutely  or  except  upon  certain  conditions,  would 
be  destroyed.  It  would  be  only  necessary  for  such  a  cor- 
poration to  have  an  understanding  with  a  resident  that  in 
the  effecting  of  contracts  between  itself  and  other  residents 
of  the  state,  he  should  be  considered  the  agent  of  the  in- 
sured persons,  and  not  of  the  company.  This  would  make 
the  exercise  of  a  substantial  and  valuable  power  by  a  state 
government  depend  not  on  the  actual  facts  of  the  transac- 
tions over  which  it  lawfully  seeks  to  extend  its  control,  but 


Il6    CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

Upon  the  disposition  of  a  corporation  to  resort  to  a  mere 
subterfuge  in  order  to  evade  obligations  properly  imposed 
upon  it.  Public  policy  forbids  a  construction  of  the  law 
which  leads  to  such  a  result,  unless  logically  unavoidable." 

Justice  Harlan  dissented  upon  the  following  grounds: 
"  We  have  before  us  a  statute  making  it  a  crime  to  procure 
or  agree  to  procure,,  in  California,  for  a  resident  of  that 
state,  a  policy  of  insurance  from  a  foreign  corporation  which 
does  not  propose  to  do  business  there  by  agents,  and,  so  far 
as  appears,  has  never  issued  to  a  resident  of  California  any 
policy  but  the  one  issued  to  Mott."  This  he  goes  on  to  say 
"  is  an  illegal  interference  with  the  liberty  both  of  Mott  and 
of  Hooper,  as  well  as  an  abridgment  of  the  privileges,  not 
of  a  foreign  corporation,  but  of  individual  citizens  of  other 
states  through  whom  the  policy  in  question  was  obtained." 

He  said  further :  "  If  he  [Mott]  preferred  insurance  in  a 
company  that  had  no  agent  in  California,  he  had  a  right  to 
that  preference ;  and  any  interference  with  its  free  exercise 
would  infringe  his  liberty.  Suppose  he  had  himself  ap- 
plied, by  mail,  directly  to  Johnson  &  Higgins  for  insurance 
on  his  vessel,  and  that  firm  had  delivered  the  policy  in  ques- 
tion to  an  express  company  with  directions  to  deliver  it  to 
Mott.  Or,  suppose  that  Mott  had  made  his  application,  by 
mail,  directly  to  the  company.  I  cannot  believe  that  a 
statute  making  his  conduct,  in  either  of  the  cases  supposed, 
a  criminal  offence,  would  be  sustained  as  consistent  with 
the  constitutional  guaranties  of  liberty.  But,  it  seems  from 
the  opinion  of  the  court,  that  a  state  is  at  liberty  to  treat 
one  as  a  criminal  for  doing  for  another  that  which  the  latter 
might  himself  do  of  right  and  without  becoming  a  criminal. 
In  my  judgment  a  state  cannot  make  it  a  crime  for  one  of 
its  people  to  obtain,  himself  or  through  the  agency  of  indi- 
vidual citizens  of  another  state,  insurance  upon  his  property 
by  a  foreign  corporation  that  chooses  not  to  enter  the  former 
state  by  its  own  agents." 

This  brings  out  clearly  enough  the  ground  of  Justice  Har- 
lan's dissent.     But  when  one  considers  the  import  of  the 


INTERSTATE   AND   FOREIGN    COMMERCE  11/ 

reasoning  here  set  forth  one  must  admit  that  according  to 
this  doctrine  an  insurance  company  could  do  business  within 
a  State  without  complying  with  the  laws  of  that  State.  In 
this  case  Justice  Harlan  doubtless  let  his  fondness  for 
freedom  get  the  better  of  his  judgment.  If  the  above  case 
had  gone  according  to  his  doctrine,  the  declaration  that  in- 
surance policies  are  not  articles  of  commerce  would  have 
been  useless,  for,  as  the  majority  opinion  pointed  out,  the 
insurance  companies  could  do  all  business  through  repre- 
sentatives without  of  necessity  complying  with  the  state 
laws.  Though  there  is  no  direct  assertion  to  that  effect,  one 
feels  from  this  decision  that  Justice  Harlan  thought  that 
insurance  policies  ought  to  have  been  declared  articles  of 
commerce. 

In  Robertson  v.  Baldwin,  165  U.  S.  275,  Justice  Harlan 
dissented  more  vigorously  along  lines  similar  to  those  of  the 
Hooper  case.  The  circumstances  and  argument  of  this 
case  can  be  stated  very  briefly.  Certain  seamen  were  ar- 
rested in  San  Francisco  and  forced,  against  their  will,  to 
go  back  to  work  on  a  vessel  engaged  in  commerce.  The  em- 
ployers claimed  that  the  men  had  agreed  to  work  in  this 
vessel  until  it  should  return  to  some  port  in  the  United 
States.  The  plea  of  the  seamen  was  that  the  act  of  Con- 
gress authorizing  their  seizure  by  a  justice  of  peace  and  re- 
turn to  the  vessel  was  unconstitutional  in  that  it  forced  them 
into  involuntary  servitude. 

The  majority  of  the  court  held  that  the  contract  of  sea- 
men differs  from  other  contracts.  Tracing  the  laws  from 
the  earliest  times.  Justice  Brown,  rendering  the  opinions  of 
the  court,  showed  that  sailors  have  always  had  this  coercion 
applied  to  them.  "  In  the  face  of  this  legislation  upon  the 
subject  of  desertion  and  absence  without  leave,  which  was 
in  force  in  this  country  for  more  than  sixty  years  before 
the  13th  Amendment  was  adopted,  and  similar  legislation 
abroad  from  time  immemorial,  it  cannot  be  open  to  doubt 
that  the  provision  against  involuntary  servitude  was  never 
intended  to  apply  to  their  contracts." 


Il8     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

Justice  Harlan  looked  at  this  question  differently.  He 
contended  that  such  compulsion  was  involuntary  servitude, 
and  that  citations  from  history  had  no  bearing  since, 
throughout  history,  slavery  itself  had  been  legal.  Nor  did 
he  think  that  the  nature  of  the  undertaking  gave  sufficient 
reason  to  force  the  men  to  work.  In  regard  to  this  last 
point  he  said :  "  Under  the  contract  of  service,  it  was  at  the 
volition  of  the  master  to  entail  service  upon  these  appellants 
for  an  indefinite  period.  So  far  as  the  record  discloses,  it 
was  an  accident  that  the  vessel  came  back  to  San  Francisco 
when  it  did.  By  the  shipping  articles,  the  appellants  could 
not  quit  the  vessel  until  it  returned  to  a  port  of  the  United 
States,  and  such  return  depended  absolutely  upon  the  will  of 
the  master.  He  had  only  to  land  at  foreign  ports,  and  keep 
the  vessel  away  from  the  United  States,  in  order  to  prevent 
the  applicants  from  leaving  his  service." 

In  connection  with  the  other  consideration  the  following 
quotation  is  interesting:  "The  13th  Amendment,  although 
tolerating  involuntary  servitude  only  when  imposed  as  a 
punishment  of  crime  of  which  the  party  shall  have  been 
duly  convicted,  has  been  construed,  by  the  decision  just 
rendered,  as  if  it  contained  an  additional  clause  expressly 
excepting  from  its  operation  seamen  who  engage  to  serve 
on  private  vessels.  Under  this  view  of  the  Constitution,  we 
may  now  look  for  advertisements,  not  for  runaway  servants 
as  in  the  days  of  slavery,  but  for  runaway  seamen.  In 
former  days,  overseers  could  stand  with  whip  in  hand  over 
slaves,  and  force  them  to  perform  personal  service  for  their 
masters.  While,  with  the  assent  of  all,  that  condition  of 
things  has  ceased  to  exist,  we  can  but  be  reminded  of  the 
past  when  it  is  adjudged  to  be  consistent  with  the  law  of  the 
land  for  freemen  who  happen  tO  be  seamen  to  be  held  in 
custody  that  they  may  be  forced  to  go  aboard  private  vessels 
and  render  personal  services  against  their  will." 

From  the  above  it  is  seen  that  Justice  Harlan  did  not 
believe  that  Congress,  under  its  power  over  interstate  and 
foreign  commerce,  could  pass  laws  which  would  abridge  the 


INTERSTATE   AND   FOREIGN    COMMERCE  II 9 

rights  of  seamen,  any  more  legitimately  that  it  could  abridge 
the  rights  of  any  other  class  of  workmen. 

Along  the  same  line  with  the  case  just  discussed  is  the 
case  of  Geer  v.  Connecticut,  i6i  U.  S.  519.  In  this  case  it 
was  held  that  it  is  not  unconstitutional  for  a  State  to  forbid, 
under  pain  of  fine  or  imprisonment,  that  its  citizens  ship 
game  killed  within  the  boundaries  of  the  State  to  any  point 
outside  of  the  State.  The  ground  for  the  decision  was  that 
a  State  may  preserve  the  game  for  its  own  people.  "  The 
power  of  a  state  to  protect  by  adequate  police  regulation  its 
people  against  the  adulteration  of  articles  of  food  .  .  . 
although  in  doing  so  commerce  might  be  remotely  affected, 
necessarily  carries  with  it  the  existence  of  a  like  power  to 
preserve  a  food  supply  which  belongs  in  common  to  all  the 
people  of  the  state,  which  can  only  become  the  subject  of 
ownership  in  a  qualified  way,  and  which  can  never  become 
the  object  of  commerce  except  with  the  consent  of  the  state 
and  subject  to  the  conditions  which  it  may  deem  best  to 
impose  for  pubHc  good." 

Justice  Harlan  dissented.  He  held  that  after  a  man  has 
gained  possession  of  killed  game,  it  becomes  his  own,  to 
deal  with  as  he  pleases.  He  said :  "  The  game  in  question 
having  been  lawfully  killed,  the  person  who  killed  it  and 
took  it  into  his  possession  became  the  rightful  owner 
thereof.  This,  I  take  it,  will  not  be  questioned.  As  such 
owner  he  could  dispose  of  it  by  gift  or  sale,  at  his  dis- 
cretion. So  long  as  it  was  fit  for  use  as  food,  the  state 
could  not  interfere  with  his  disposition  of  it,  any  more  than 
it  could  interfere  with  the  disposition  by  the  owner  of  other 
personal  property  that  was  not  noxious  in  its  character.  To 
hold  that  the  person  receiving  personal  property  from  the 
owner  may  not  receive  it  with  the  intent  to  send  it  out  of 
the  state  is  to  recognize  an  arbitrary  power  in  the  govern- 
ment which  is  inconsistent  with  the  liberty  belonging  to 
every  man,  as  well  as  with  the  rights  which  inhere  in  the 
ownership  of  property.  .  .  .  Believing  that  the  statute  of 
Connecticut,  in  its  application  to  the  present  case,  is  not 


I20     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

consistent  with  the  liberty  of  the  citizen  or  with  the  freedom 
of  interstate  commerce,  I  dissent  from  the  opinion  and  judg- 
ment of  the  court." 

The  last  case  to  be  mentioned  involving  freedom  of  con- 
tract in  interstate  commerce  is  that  of  Smith  v.  St.  Louis 
and  S.  W.  R.  Co.,  i8i  U.  S.  248.  Here  was  brought  into 
question  the  constitutionality  of  a  statute  of  Louisiana — a 
quarantine  law — which  forbade  any  shipment  of  cattle  of 
any  description  from  Texas  into  Louisiana,  or  from  Loui- 
siana into  Texas,  because  of  the  existence  of  anthrax  among 
the  animals  of  Texas.  The  court  sustained  the  law  as  a 
valid  police  regulation. 

Justice  Harlan,  with  whom  concurred  Justice  White,  ob- 
jected to  the  sweeping  scope  of  the  law.  Its  inclusiveness, 
according  to  him,  made  undue  restrictions  upon  interstate 
commerce.  "  The  grounds  of  my  dissent  are  these :  ( i )  The 
railroad  company  was  bound  to  discharge  its  duties  as  a 
carrier  unless  relieved  therefrom  by  such  quarantine  regu- 
lations under  the  laws  of  Texas  as  were  consistent  with 
the  Constitution  of  the  United  States.  It  could  not  plead 
in  defense  of  its  action  the  quarantine  regulations  adopted 
by  the  state  sanitary  commission  and  the  proclamation  of 
the  governor  of  that  state,  if  such  regulations  and  proclama- 
tion were  void  under  the  Constitution  of  the  United  States. 
(2)  The  authority  of  the  state  to  establish  quarantine  regu- 
lations for  the  protection  of  the  health  of  its  people  does 
not  authorize  it  to  create  an  embargo  upon  all  commerce 
involved  in  the  transportation  of  live  stock  from  Louisiana 
to  Texas.  The  regulations  and  the  governor's  proclama- 
tion upon  their  face  showed  the  existence  of  a  certain  cattle 
disease  in  one  of  the  counties  of  Texas.  If,  under  any 
circumstances,  that  fact  could  be  the  basis  of  an  embargo 
upon  the  bringing  into  Texas  from  Louisiana  of  all  live 
stock  during  a  prescribed  period,  those  circumstances  should 
have  appeared  from  the  regulations  and  the  proclamation 
referred  to.  On  the  contrary,  there  does  not  appear  on 
the  face  of  the  transaction  any  ground  whatever  for  estab- 


INTERSTATE   AND   FOREIGN    COMMERCE  121 

lishing  a  complete  embargo  for  any  given  period  upon  all 
transportation  of  live  stock  from  Louisiana  to  Texas." 

In  other  words,  Justice  Harlan  could  not  see  that  there 
were  sufficient  grounds  to  cause  the  discontinuance  of  all 
shipments  of  cattle  into  Texas  because  of  disease  there. 
He  could  not  see  how  sending  cattle  from  Louisiana  into 
Texas  would  bring  disease  from  Texas  into  Louisiana,  and 
hence  he  thought  that  such  a  restriction  was  an  improper 
burden  upon  interstate  commerce. 

In  considering  the  attitude  of  Justice  Harlan  to  freedom 
of  contract  as  a  whole,  the  conclusion  is  inevitable  that  he 
was  more  liberal  on  this  point  than  on  almost  any  other. 
He  magnified  individual  freedom  greatly,  and  in  so  doing 
seemed  to  lose  sight  at  times  of  the  real  working  of  the 
law.  For  instance,  in  Hooper  v.  California  a  doctrine  such 
as  he  upheld  would  in  practice  have  displaced  the  accepted 
position  of  insurance  policies,  and  would  have  forced  them 
into  a  rather  anomalous  category.  They  would  not  have 
been  articles  of  commerce,  and  at  the  same  time  could  not 
be  subjected  to  effective  regulation  by  the  States.  Thus 
they  would  have  tended  to  slip  out  from  under  both  national 
and  state  control. 

Employers'  Liability. — The  case  of  Howard  v.  Illinois 
Central  R.  Co.,  207  U.  S.  463,  brought  before  the  Supreme 
Court  the  constitutionality  of  a  statute  of  Congress,  passed 
June  II,  1906,  making  employers  liable  for  the  injury  or 
death  of  employees  on  railroad  trains.  That  was  the  first 
employers'  liability  act  passed  by  Congress,  and  was  held 
to  be  unconstitutional  as  an  attempt  on  the  part  of  Congress 
to  regulate  intrastate  as  well  as  interstate  commerce.  The 
court  spoke  as  follows:  "Concluding,  as  we  do,  that  the 
statute,  whilst  it  embraces  subjects  within  the  authority  of 
Congress  to  regulate  commerce,  also  includes  subjects  not 
within  its  constitutional  power,  and  that  the  two  are  so  inter- 
blended  in  the  statute  that  they  are  incapable  of  separation, 
we  are  of  the  opinion  that  the  courts  below  rightly  held 
the  statute  to  be  repugnant  to  the  Constitution  and  non- 
enforceable." 


122     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

Justices  Moody,  Harlan,  Holmes,  and  McKenna  dissented 
from  this  opinion.  They  asserted  that  though  the  statute 
could  be  so  read  as  to  make  it  include  matters  that  were 
without  the  power  of  the  general  government  to  regulate, 
a  narrower  reading  could  and  should  have  been  given  to  it 
so  as  to  make  it  constitutional.  Justice  Moody  rendered  an 
able  dissent  from  this  case,  and  Justice  Harlan  concurred 
in  his  views,  but  also  gave  a  short  dissenting  opinion  of 
his  own.  He  said :  "  We  do  not  concur  in  the  interpretation 
of  that  act  as  given  in  the  opinion  delivered  by  Mr.  Justice 
White,  but  think  that  the  act,  reasonably  and  properly  in- 
terpreted, applies,  and  should  be  interpreted  as  intended 
by  Congress  to  apply  only  to  cases  of  interstate  commerce 
and  to  employees  who,  at  the  time  of  the  particular  wrong 
or  injury  complained  of,  are  engaged  in  such  commerce,  and 
not  to  domestic  commerce  or  commerce  completely  internal 
to  the  State  in  which  the  wrong  or  injury  occurred." 

Beginning  of  the  Interstate  Commerce  Commission. — 
There  are  two  significant  cases  in  which  Justice  Harlan 
differed  from  the  court  in  its  review  of  decisions  rendered 
by  the  Interstate  Commerce  Commission.  The  first  was 
the  case  of  Texas  and  Pacific  R.  Co.  v.  Interstate  Commerce 
Commission,  162  U.  S.  197.  Here  the  question  was  whether 
under  the  Interstate  Commerce  Act  the  railroad  company 
could  legally  charge  a  cheaper  rate  for  shipments  of  goods 
from  foreign  ports  through  the  territory  of  the  United 
States  than  it  did  between  two  equally  distant  places  within 
the  United  States.  The  commission  held  that  there  had 
been  an  unlawful  discrimination.  In  the  Supreme  Court  it 
was  argued  that  the  Interstate  Commerce  Commission  had 
erred  in  interpreting  the  statute  of  Congress  by  not  con- 
sidering circumstances  which  would  have  justified  the  rail- 
road companies  in  making  the  distinction.  The  special  cir- 
cumstances under  which  they  claimed  justification  were  that 
since  the  freight  vessels  charged  a  cheaper  rate  for  deliver- 
ing goods  from  foreign  ports  to  points  along  the  Pacific 
coast,  they  were  justified  in  putting  the  railroad  rates  so  low 


INTERSTATE   AND   FOREIGN    COMMERCE  1 23 

as  to  draw  the  shipments  over  the  land.  This  contention 
the  Supreme  Court  upheld,  reversing  the  decision  of  the 
circuit  court :  "  The  mere  fact  that  the  disparity  between  the 
through  and  local  rates  was  considerable  did  not,  of  itself, 
warrant  the  court  in  finding  that  such  disparity  constituted 
an  undue  discrimination — much  less  did  it  justify  the  court 
in  finding  that  the  entire  difference  between  the  two  rates 
was  undue  or  unreasonable,  especially  as  there  was  no 
person,  firm,  or  corporation  complaining  that  he  or  they  had 
been  aggrieved  by  such  disparity."  The  case  had  been  con- 
tested at  the  instigation  of  chambers  of  commerce. 

As  would  naturally  be  supposed,  Justice  Harlan's  conten- 
tion was  that  such  a  decree  legitimised  partiality  to  foreign 
shippers  as  opposed  to  those  at  home.  He  contended  that 
the  Interstate  Commerce  Commission  gave  the  only  proper 
interpretation  of  the  act  of  Congress,  either  as  to  its  mean- 
ing or  as  to  the  intent  of  the  legislators.  He  said :  "  If  such 
discrimination  by  American  railways,  having  arrangements 
with  foreign  companies,  against  goods,  the  product  of 
American  skill,  enterprise  and  labor,  is  consistent  with  the 
act  of  Congress,  then  the  title  of  that  act  should  have  been 
one  to  regulate  commerce  to  the  injury  of  American  in- 
terests and  for  the  benefit  of  foreign  manufacturers  and 
dealers." 

He  said  further:  "I  am  not  much  impressed  by  the 
anxiety  which  the  railroad  company  professes  to  have  for 
the  interests  of  the  consumers  of  foreign  goods  and  products 
brought  to  this  country  under  arrangement  as  to  rates  made 
by  it  with  ocean  transportation  lines.  We  are  dealing  in 
this  case  only  with  a  question  of  rates  for  the  transporta- 
tion of  goods  from  New  Orleans  to  San  Francisco  over  the 
defendants'  railroad.  The  consumers  at  San  Francisco, 
those  who  may  be  supplied  from  that  city,  have  no  concern 
whether  the  goods  reached  them  by  the  way  of  railroad 
from  New  Orleans,  or  by  water  around  Cape  Horn,  or  by 
route  across  the  isthmus  of  Panama." 

The  last  and  most  significant  case  regarding  the  early 


124    CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

powers  of  the  Interstate  Commerce  Commission  is  that  of 
the  Interstate  Commerce  Commission  v.  Alabama  Midland 
R.  Co.,  i68  U.  S.  144.  This  again  was  a  case  in  which  it 
was  held  that  the  commission  had  not  given  weight  to 
material  considerations. 

The  town  of  Troy,  Alabama,  claimed  that  it  was  dis- 
criminated against  in  railroad  rates.  On  phosphate  rock 
from  a  certain  point  to  Troy  the  charge  was  $3.22  a  ton, 
while  from  the  same  point  to  Montgomery,  a  longer  dis- 
tance, the  charge  was  only  $3  a  ton.  A  similar  rate  was 
charged  on  cotton  and  various  other  commodities.  Upon 
appeal  to  the  Interstate  Commerce  Commission  this  was  held 
to  be  discrimination,  and  the  rates  were  ordered  to  be  re- 
duced to  a  certain  point.  Because  of  this  reduction  the 
case  was  taken  by  the  railroad  company  into  the  circuit 
court  of  appeal,  where  the  decision  of  the  commission  was 
overthrown,  whereupon  the  commission  appealed  to  the 
Supreme  Court.  The  Supreme  Court  decided  that  in  at- 
tempting to  fix  rates  the  commission  had  exceeded  the 
powers  granted  to  it  by  Congress.  Furthermore,  the  court 
in  this  case  went  further  than  to  attempt  to  determine 
whether  the  commission  had  rightly  interpreted  the  statute 
of  Congress.  It  justified  this  conduct  by  asserting  that  it 
had  to  investigate  the  circumstances  in  order  to  answer  the 
question  put  by  the  Interstate  Commerce  Commission.  It 
had  been  asked  by  the  commission  whether  or  not  the 
decision  made  by  the  commission  was  right,  and  since  the 
decision  rested  on  the  facts,  the  court  had  to  investigate  the 
facts  to  decide  whether  the  commission  had  exceeded  its 
jurisdiction  or  not.  Having  done  this,  it  decided  that  the 
commission  had  exercised  a  power  which  it  did  not  have, 
and  furthermore  asserted  that  the  circumstances  required  a 
higher  rate  than  the  commission  had  set,  hence  the  decision 
of  the  commission  remained  overthrown. 

Justice  Harlan  disagreed  with  this  decision  because  it 
apparently  deprived  the  Interstate  Commerce  Commission 
of  its  ability  to  prevent  discrimination  in  rates.     He  said: 


INTERSTATE   AND   FOREIGN    COMMERCE  125 

"The  Commission  was  established  to  protect  the  public 
against  improper  practices  of  transportation  companies 
engaged  in  commerce  among  the  several  states.  It  has  been 
left,  it  is  true,  with  power  to  make  reports  and  issue 
protests.  But  it  has  been  shorn  by  judicial  interpretation, 
of  authority  to  do  anything  of  an  effective  character.  It  is 
denied  many  of  the  powers  which,  in  my  judgment,  were 
intended  to  be  conferred  upon  it.  Besides,  the  acts  of 
Congress  are  now  so  construed  as  to  place  communities  on 
the  lines  of  interstate  commerce  at  the  mercy  of  competing 
railroad  companies  engaged  in  such  commerce." 

But  however  condemnable  a  situation  may,  for  the  time 
being,  seem  to  be,  it  appears  that  somehow  things  right 
themselves  in  a  government  which  is  responsible  to  a  healthy 
public  opinion.  At  that  time  one  of  the  most  significant 
steps  that  had  been  taken  to  assure  honest  railroad  rates 
must  have  seemed  to  Justice  Harlan  to  have  been  blocked. 
The  delay  proved,  however,  to  be  only  temporary,  for  since 
the  above  case  was  decided  Congress  has  thought  it  wise  so 
to  amend  the  act  establishing  the  Interstate  Commerce  Com- 
mission as  to  give  it  the  power  which  the  court  in  this  case 
said  that  it  did  not  have.  In  other  words,  Congress  has 
said  that  it  did  mean  to  say  what  the  court  said  that  it  did 
not  mean  to  say,  and  what  Justice  Harlan  contended  was  the 
only  thing  that  it  could  very  well  have  meant  to  say, 
namely,  that  the  commission  should  determine  what  are 
fair  rates  for  interstate  lines  to  charge  for  the  various 
articles  of  transportation. 

Although  the  court  alluded  to  the  fact  that  the  granting  of 
the  rate-making  power  to  the  Interstate  Commerce  Com- 
mission might  be  considered  a  delegation  of  legislative 
power,  no  definite  point  was  made  of  it.  This  considera- 
tion did  not  seem  to  Justice  Harlan  to  be  a  serious  obstacle 
in  the  way  of  granting  such  a  power  to  the  Commission. 
Since  the  later  amendment  to  the  act  of  Congress,  however, 
the  judges  seem  to  be  unanimous  in  indicating  that  they  do 
not  consider  this  a  delegation  of  the  legislative  power. 


CHAPTER  V 
Equal  Protection  of  the  Laws 

Race. — In  discussing  the  question  of  the  equal  protection 
of  the  laws  in  reference  to  the  negroes  it  will  be  necessary 
to  bring  into  consideration  cases  which  might  have  been 
dealt  with  exclusively  under  other  subjects.  There  are 
seven  cases  in  which  this  vexed  question  has  arisen  in  one 
way  or  another:  (i)  The  Civil  Rights  Cases,  109  U.  S.  3; 
(2)  Louisville,  New  Orleans  and  Texas  R.  Co.  v.  Missis- 
sippi, 133  U.  S.  587;  (3)  Plessy  v.  Ferguson,  163  U.  S.  537; 
(4)  Giles  V.  Harris,  189  U.  S.  475;  (5)  Hodges  v.  United 
States,  203  U.  S.  I ;  (6)  Berea  College  v.  Kentucky,  211 
U.  S.  45;  (7)  Bailey  v.  Alabama,  219  U.  S.  219. 

The  first  determined  the  position  which  the  negroes 
should  occupy  in  the  States  after  the  adoption  of  the  thir- 
teenth and  fourteenth  amendments,  that  is,  that  they  should 
be  citizens  of  the  States  and  not  wards  of  the  nation.  The 
second  involved  the  constitutionality  of  the  so-called  Jim 
Crow  laws  from  the  standpoint  of  interstate  commerce. 
The  third  passed  upon  the  Jim  Crow  laws  under  the  general 
provisions  of  the  thirteenth  and  fourteenth  amendments. 
The  fourth  refused  to  pass  upon  the  constitutionality  of  the 
so-called  disfranchisement  provisions  in  the  constitution  of 
Alabama.  The  fifth  and  seventh  involved  the  constitu- 
tionality of  certain  acts  which  were  claimed  to  allow  peonage 
in  some  of  the  Southern  States.  The  sixth  involved  the 
constitutionality  of  a  state  law  forbidding  admission  of 
negroes  to  Berea  College,  Kentucky.  In  every  case  the 
negro  was  denied  the  rights  which  he  claimed. 

The  Civil  Rights  Cases  will  be  discussed  in  more  detail 
than  the  others,  for  in  them  is  found  the  heart  of  the  ques- 
tion as  to  the  position  which  the  negro  was  to  occupy  after 

126 


EQUAL   PROTECTION    OF   THE   LAWS  12/ 

the  passage  of  the  thirteenth  and  fourteenth  amendments. 
There  were  five  of  these  cases,  but  only  four  of  them  in- 
volved the  main  question.  Two  cases  arose  because  of  the 
refusal  to  admit  negroes  to  hotels  and  two  on  account  of  the 
refusal  to  admit  negroes  to  theatres  on  the  same  footing  as 
other  people ;  the  other  arose  out  of  the  refusal  of  a  railway 
conductor  to  allow  a  colored  woman  to  ride  in  the  ladies' 
car.  The  contention  of  the  plaintiffs  was  that  these  denials 
constituted  violations  of  sections  i  and  2  of  an  act  of  Con- 
gress known  as  the  Civil  Rights  Act,  passed  March  i,  1875, 
as  appropriate  legislation  to  enforce  the  rights  which  the 
negroes  had  acquired  under  the  newly  added  amendments. 
The  question,  therefore,  was  whether  the  sections  of  the  act 
were  constitutional. 

The  argument  of  the  court  in  declaring  the  sections  un- 
constitutional may  be  summarized  as  follows :  ( i )  In  reply 
to  the  contention  that  the  power  of  Congress  to  pass  such  a 
law  was  granted  by  the  fourteenth  amendment,  the  state- 
ment was  made  that,  similar  to  the  requirement  that  no 
State  should  pass  any  law  impairing  the  obligation  of  con- 
tracts, it  was  state  action  of  a  particular  character  that  was 
prohibited,  and  that  individual  invasion  of  individual  rights 
was  not  the  subject-matter  of  the  amendment.  A  differen- 
tiation was  thus  made  between  the  legislative  powers  of 
Congress  under  these  amendments  and  those  derived  from 
the  provisions  of  the  Constitution  which  clothe  Congress 
with  plenary  power  of  legislation  over  the  whole  subject- 
matter,  as,  for  example,  the  regulation  of  interstate  com- 
merce. "  In  these  cases,  Congress  has  power  to  pass  laws 
regulating  subjects  specified  in  every  detail,  and  the  conduct 
and  transactions  of  individuals  in  every  respect  thereof. 
But  where  a  subject  is  not  submitted  to  the  general  legis- 
lative power  of  Congress,  but  is  only  submitted  thereto  for 
the  purpose  of  rendering  effective  some  prohibitions  against 
particular  State  legislation  or  State  action  in  reference  to 
that  subject,  the  power  given  is  limited  by  its  object,  and 
any  legislation  by  Congress  in  the  matter  must  necessarily 


128     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

be  corrective  in  character,  adapted  to  counteract  and  redress 
the  operation  of  such  prohibited  state  laws  or  proceedings 
of  State  officers." 

(2)  Such  legislation  by  Congress  was  not  needed  for  the 
enforcement  of  the  thirteenth  amendment  because  that 
amendment  is  self-executing.  "  By  its  own  unaided  force 
and  effect,  it  abolished  slavery,  and  established  universal 
freedom.  Still  legislation  may  be  necessary  and  proper  to 
meet  all  the  various  cases  and  circumstances  to  be  affected 
by  it,  and  to  prescribe  proper  modes  of  redress  for  its  viola- 
tion in  letter  and  in  spirit,  and  such  legislation  may  be 
primary  and  direct  in  its  character;  for  the  Amendment  is 
not  a  mere  prohibition  on  state  laws  establishing  or  uphold- 
ing slavery,  but  an  absolute  declaration  that  slavery  or  in- 
voluntary servitude  shall  not  exist  in  any  part  of  the  United 
States."  The  court  admitted,  therefore,  that  Congress  had 
the  right  to  pass  any  appropriate  legislation  for  the  oblitera- 
tion and  prevention  of  slavery,  but  denied  that  the  refusal 
of  admission  to  accommodations  and  privileges  in  all  inns, 
public  conveyances,  and  so  on,  subjected  those  persons  to 
any  form  of  servitude,  or  tended  to  fasten  on  them  any 
badges  of  slavery.  "It  would  be  running  the  slavery  ar- 
gument into  the  ground,  to  make  it  apply  to  every  act  of 
discrimination  which  a  person  may  see  fit  to  make  as  to  the 
guests  he  will  entertain,  or  as  to  the  people  he  will  take 
into  his  coach  or  car,  or  admit  to  his  concert  or  theatre,  or 
deal  with  in  other  matters  of  intercourse  or  business.  Inn- 
keepers and  public  carriers,  by  the  laws  of  all  the  States, 
so  far  as  we  are  aware,  are  bound,  to  the  extent  of  their 
facilities,  to  furnish  proper  accommodations  to  all  unob- 
jectionable persons  who  apply  in  good  faith  for  them.  If 
the  laws  themselves  make  any  unjust  discrimination,  amen- 
able to  the  14th  Amendment,  Congress  has  full  power  to 
afford  a  remedy,  under  that  Amendment  and  in  accordance 
with  it." 

It  is  seen,  therefore,  that  the  argument  of  the  court  rested 
in  the  first  place  on  the  assumption  that  the  fourteenth 


EQUAL   PROTECTION    OF   THE   LAWS  1 29 

amendment  gave  Congress  only  the  power  of  passing  cor- 
rective legislation  directed  at  state  action,  and  that  since  the 
act  in  question  was  directed  against  individuals  it  could  not 
be  considered  appropriate  legislation  for  the  enforcement 
of  the  provisions  of  the  fourteenth  amendment.  In  the 
second  place,  it  was  not  appropriate  legislation  for  the  en- 
forcement of  the  thirteenth  amendment,  for  it  had  been 
aimed  at  some  things  which  the  appellants  had  attempted  to 
characterize  as  badges  of  slavery,  but  which  could  not  be 
termed  such. 

Justice  Harlan's  contentions  in  dissenting  from  these 
views  may  be  briefly  given  as  follows:  First,  he  held  that 
the  freedom  established  by  the  thirteenth  amendment  in- 
volved more  than  exemption  from  actual  slavery.  It  meant 
more  than  simply  preventing  one  person  from  owning  an- 
other as  property.  The  people,  in  adding  the  thirteenth 
amendment  to  the  Constitution,  could  not  have  intended  to 
destroy  simply  the  institution  of  slavery  and  then  remit 
those  who  had  been  set  free  to  the  States  which  had  held 
them  in  bondage,  and  expect  those  States  to  protect  them  in 
the  rights  which  necessarily  grew  out  of  the  freedom  which 
those  States  did  not  desire  them  to  have.  "  I  do  not  con- 
tend that  the  1 3th  Amendment  invests  Congress  with  author- 
ity, by  legislation,  to  define  and  regulate  the  entire  body  of 
civil  rights  which  citizens  enjoy,  or  may  enjoy  in  the  sev- 
eral States.  But  I  hold  that  since  slavery,  as  the  court  has 
repeatedly  declared  .  .  .  was  the  moving  force  or  principal 
cause  of  the  adoption  of  that  Amendment,  and  since  that 
institution  rested  wholly  upon  the  inferiority,  as  a  race,  of 
those  held  in  bondage,  their  freedom  necessarily  involved 
immunity  from,  and  protection  against,  all  discrimination 
against  them,  because  of  their  race,  in  respect  of  such  civil 
rights  as  belong  to  freemen  of  other  races." 

Second,  he  held  that  it  was  not  for  the  judiciary  but  for 
Congress  to  say  what  was  appropriate  legislation  for  the 
enforcement  of  the  thirteenth  and  fourteenth  amendments.' 
"  Under  given  circumstances,  that  which  the  court  charac- 


130     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

terizes  as  corrective  legislation  might  be  deemed  by  Con- 
gress as  appropriate  and  entirely  sufficient.  Under  other 
circumstances  primary  direct  legislation  may  be  required. 
But  it  is  for  Congress,  not  the  judiciary,  to  say  that  legis- 
lation is  appropriate ;  that  is,  the  best  adapted  to  the  end  to 
be  attained." 

Another  quotation  along  this  same  line  will  be  pertinent : 
"  With  all  respect  for  the  opinion  of  others,  I  insist  that  the 
National  Legislature  may,  without  transcending  the  limits 
of  the  Constitution,  do  for  human  liberty  and  the  funda- 
mental rights  of  American  citizenship,  what  it  did,  with  the 
sanction  of  this  court,  for  the  protection  of  slavery  and  the 
rights  of  the  master  of  fugitive  slaves.  If  fugitive  slave 
laws  providing  modes,  and  prescribing  penalties  whereby 
the  master  could  seize  and  recover  his  fugitive  slave,  were 
legitimate  exercises  of  an  implied  power  to  protect  and  en- 
force a  right  recognized  by  the  Constitution,  why  shall  the 
hands  of  Congress  be  tied,  so  that, — under  an  express  power 
by  appropriate  legislation,  to  enforce  a  Constitutional  pro- 
vision granting  citizenship — it  may  not,  by  means  of  direct 
legislation,  bring  the  whole  power  of  this  Nation  to  bear 
upon  States  and  their  officers,  and  upon  such  individuals 
and  corporations  exercising  public  functions  as  assume  to 
abridge,  impair  or  deny  rights  confessedly  secured  by  the 
supreme  law  of  the  land  ?  " 

This  gives  an  insight  into  the  most  significant  points  de- 
veloped by  Justice  Harlan.  Other  considerations  were 
urged  by  him,  but  they  were  of  less  importance  than  these. 
His  doctrine  might  be  stated  as  follows :  ( i )  Admission  to 
hotels,  places  of  amusement,  and  so  forth,  on  equal  footing 
with  other  citizens  was  a  right  that  could  not  be  denied  to 
citizens  without  infringing  their  freedom;  hence  such  re- 
fusals constituted  badges  of  slavery,  and  could  be  punished 
under  the  section  of  the  thirteenth  amendment  which  gives 
Congress  the  right  to  enforce  by  appropriate  legislation 
the  provision  against  slavery  or  involuntary  servitude.  (2) 
It  was  absurd  to  take  the  slaves  out  of  the  hands  of  the 


EQUAL   PROTECTION    OF   THE   LAWS  I3I 

States,  and  soon  thereafter  give  them  back  as  free  men  to 
these  same  States,  and  expect  them  to  be  protected  in  their 
civil  rights.  The  nation  could  not  have  meant  to  do  so  il- 
logical a  thing.  And  as  simply  the  protection  of  the  civil 
rights  of  negroes — or  those  who  were  once  slaves — did  not 
mean  the  taking  by  Congress  of  all  civil  rights  of  other 
citizens  into  its  charge,  such  protection  did  not  materially 
alter  the  nature  of  our  institutions.  No  such  alteration  was 
intended  by  the  newly  added  amendments.  (3)  It  was  not 
intended  that  the  court  should  say  what  is  meant  by  appro- 
priate legislation.  If  Congress  saw  in  certain  acts  badges 
and  incidents  of  servitude  or  violations  of  the  fourteenth 
amendment,  it  was  not  for  the  court  to  say  what  legislation 
Congress  might  choose  to  pass  to  remedy  that  condition; 
and  a  pronouncement  by  the  court  against  the  condition  was 
judicial  legislation.  (4)  Precedent  showed  that  before  the 
war  Congress  had,  under  an  implied  power,  legislated  so 
that  owners  of  slaves  could  retain  possession  of  their  slaves ; 
under  an  expressed  power  Congress  should  be  able  to  secure 
freedmen  in  the  possession  of  their  rights. 

When  a  fair  examination  is  made  of  the  decision  and  the 
dissent,  the  conclusion  is  plain  that  legally  there  is  as  much 
ground  for  one  opinion  as  for  the  other.  By  a  restricted 
and  somewhat  narrower  interpretation  of  the  amendments 
in  question,  the  opinion  of  the  court  is  logically  sound. 
Justice  Harlan's  arguments  do  not  refute  the  arguments  of 
the  court.  His  view  is  broader  in  some  ways,  and  is  based 
on  a  different  line  of  reasoning.  Both  are  sound  constitu- 
tional doctrines,  and  the  question  was  simply  which  of  the 
two  the  majority  of  the  court  espoused.  They  upheld  the 
former,  and,  of  course,  the  decision  went  contrary  to  Justice 
Harlan's  opinion.  But  since  in  this  case  the  court  decided 
the  question  upon  the  ground  that  the  legislation  in  the 
Civil  Rights  Act  was  directed  against  individual  action  and 
was  not  corrective  of  state  legislation  and  hence  was  un- 
constitutional, it  will  be  interesting  to  follow  the  opinions 
that  have  been  delivered  as  regards  state  acts. 


132     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

The  next  case  is  Louisville,  New  Orleans  and  Texas  R. 
Co.  V.  Mississippi,  133  U.  S.  587.  Since,  however,  this 
case  was  discussed  fully  under  interstate  and  foreign  com- 
merce,^ it  need  not  be  considered  further  at  this  point. 

Probably  the  most  typical  case,  after  the  Civil  Rights 
Cases,  that  has  arisen  under  the  equal  protection  clause  is 
that  of  Plessy  v.  Ferguson,  163  U.  S.  537.  This  case  also 
involved  the  constitutionality  of  a  statute  of  a  State  requir- 
ing the  separation  of  races  on  the  trains.  It  was  rested 
directly  upon  the  equal  protection  clause,  but  brought  into 
question  the  general  purpose  of  the  thirteenth  and  four- 
teenth amendments. 

The  court  held  the  following  opinion:  (i)  There  was 
nothing  to  show  that  the  statute  required  involuntary  servi- 
tude :  "  A  statute  which  implies  merely  a  legal  distinction 
between  white  and  colored  races — a  distinction  which  is 
founded  in  the  color  of  the  two  races,  and  which  must 
always  exist  so  long  as  white  men  are  distinguished  from 
the  other  race  by  color — has  no  tendency  to  destroy  the  legal 
equality  of  the  two  races,  or  to  re-establish  a  state  of  invol- 
untary servitude."  (2)  The  statute  was  in  no  way  in  con- 
flict with  the  fourteenth  amendment:  "The  object  of  the 
amendment  was  undoubtedly  to  enforce  absolute  equality 
of  the  two  races  before  the  law,  but  in  the  nature  of  things 
it  could  not  have  been  intended  to  abolish  the  distinctions 
based  on  color,  or  to  enforce  social,  as  distinguished  from 
political,  equality,  or  as  commingling  the  two  races  upon 
terms  unsatisfactory  to  either.  .  .  .  We  consider  the  un- 
derlying fallacy  of  the  plaintiff's  argument  to  consist  in  the 
assumption  that  the  enforced  separation  of  the  two  races 
stamps  the  colored  race  with  a  badge  of  inferiority.  If  this 
be  so  it  is  not  by  reason  of  anything  found  in  the  act,  but 
solely  because  the  colored  race  chooses  to  put  that  construc- 
tion upon  it.  The  argument  necessarily  assumes  that  if,  as 
has  been  more  than  once  the  case,  and  is  not  unlikely  to  be 
so  again,  the  colored  race  should  become  the  dominant  power 

1  See  pages  89-90. 


EQUAL   PROTECTION    OF   THE   LAWS  1 33 

in  the  state  legislature,  and  should  enact  a  law  in  precisely 
similar  terms,  it  would  thereby  relegate  the  white  race  to 
an  inferior  position.  We  imagine  that  the  white  race,  at 
least,  would  not  acquiesce  in  this  assumption."  (3)  The 
question  as  to  the  amount  of  negro  blood  necessary  to 
stamp  a  person  a  negro  was  to  be  settled  by  the  State. 
What  the  State  pronounced  in  this  regard  would  be  held 
correct  in  the  United  States  Supreme  Court. 

In  opposition  to  these  views  Justice  Harlan  developed  the 
following  points:  (i)  The  railroad,  as  a  public  highway, 
should  not  be  directed  or  allowed  to  discriminate  on  account 
of  race.  "  In  respect  of  civil  rights,  common  to  all  citizens, 
the  Constitution  of  the  United  States  does  not,  I  think,  per- 
mit any  public  authority  to  know  the  race  of  those  entitled 
to  be  protected  in  the  enjoyment  of  such  rights.  Every 
true  man  has  pride  of  race,  and  under  appropriate  circum- 
stances, when  the  rights  of  others,  his  equals  before  the  law, 
are  not  to  be  aifected,  it  is  his  privilege  to  express  such  pride 
and  take  such  action  based  upon  it  as  to  him  seems  proper. 
But  I  deny  that  any  legislative  body  or  judicial  tribunal  may 
have  regard  to  the  race  of  its  citizens  when  the  civil  rights 
of  those  citizens  are  involved.  Indeed,  such  legislation  as 
that  here  in  question  is  inconsistent,  not  only  with  that 
equality  of  rights  which  pertains  to  citizenship,  national  and 
state,  but  with  the  personal  liberty  enjoyed  by  every  one 
within  the  United  States."  (2)  The  thirteenth  amendment 
does  not  permit  the  withholding  or  the  deprivation  of  any- 
thing necessarily  inhering  in  freedom.  As  that  amendment 
had  been  found  inadequate  for  the  protection  of  the  rights 
of  those  who  had  been  in  slavery,  it  was  followed  by  the 
fourteenth,  which  added  greatly  to  the  dignity  and  glory  of 
American  citizenship.  "  Finally,  and  to  the  end  that  no 
citizen  should  be  denied,  on  account  of  his  race,  the  privi- 
lege of  participating  in  the  poHtical  control  of  his  country 
it  was  declared  by  the  15th  Amendment  that  *the  right  of 
citizens  of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  on  account  of  race,  color,  or  previous  condition 
of  servitude.' " 


134    CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

The  following  quotation  will  give  the  gist  of  the  dissent : 
"  It  was  said  in  argument  that  the  statute  of  Louisiana  does 
not  discriminate  against  either  race,  but  prescribes  a  rule 
applicable  alike  to  white  and  colored  citizens.  But  this 
argument  does  not  meet  the  difficulty.  Every  one  knows 
that  the  statute  in  question  had  its  origin  in  the  purpose,  not 
so  much  to  exclude  the  white  persons  from  railroad  cars 
occupied  by  blacks,  as  to  exclude  colored  persons  from 
coaches  assigned  to  white  persons.  Railroad  corporations 
of  Louisiana  did  not  make  discrimination  among  whites  in 
the  matter  of  accommodation  for  travellers.  The  thing  to 
accomplish  was,  under  the  guise  of  giving  equal  accommo- 
dation for  whites  and  blacks  to  compel  the  latter  to  keep  to 
themselves  while  travelling  in  railroad  passenger  coaches. 
No  one  would  be  so  wanting  in  candor  as  to  assert  the  con- 
trary. .  .  . 

"  I  am  of  opinion  that  the  statute  of  Louisiana  is  incon- 
sistent with  the  personal  liberty  of  citizens,  white  and  black, 
in  that  state,  and  hostile  to  both  the  spirit  and  letter  of  the 
Constitution  of  the  United  States.  If  laws  of  Hke  charac- 
ter should  be  enacted  in  the  several  states  of  the  Union,  the 
effect  would  be  in  the  highest  degree  mischievous.  Slavery 
as  an  institution  tolerated  by  law  would,  it  is  true,  have  dis- 
appeared from  our  country,  but  there  would  remain  a  power 
in  the  states,  by  sinister  legislation,  to  interfere  with  the 
full  enjoyment  of  the  blessings  of  freedom." 

The  next  case,  Giles  v.  Harris,  189  U.  S.  475,  involved 
various  provisions  in  the  constitution  of  the  State  of  Ala- 
bama which  operated  to  disfranchise  the  negroes.  The  case 
had  been  dismissed  from  the  circuit  court  because  damages 
to  the  amount  of  two  thousand  dollars  were  not  averred. 
It  was  appealed  to  the  Supreme  Court  of  the  United  States, 
where  the  point  as  to  the  amount  averred  was  waived,  and 
the  case  was  argued  on  its  merits.  Although  the  court 
showed  that  it  was  not  within  the  power  of  equity  to  grant 
relief,  and  not  possible  to  assure  the  right  to  vote  to  the 
colored  people  in  face  of  the  opposition  of  the  white  popu- 


EQUAL   PROTECTION    OF   THE   LAWS  1 35 

lation,  it  did  not  pass  upon  the  constitutionality  of  the  pro- 
visions in  question.  This  case  is  discussed  more  fully  in 
the  chapter  on  jurisdiction  of  court.^ 

The  next  two  cases  involve  the  question  of  peonage  in  the 
Southern  States.  Hodges  v.  United  States,  203  U.  S.  I, 
was  a  review  of  a  judgment  in  a  lower  federal  court  "  con- 
victing individual  citizens  of  compelling  negro  citizens,  by 
force  and  intimidation,  to  desist  from  performing  their 
contracts  of  employment."  It  came  by  writ  of  error  to  the 
United  States  district  court  of  Arkansas,  where  the  decision 
was  that  interference  with  citizens  to  such  an  extent  as  to 
prevent  them  from  contracting  for  their  labor  as  they 
pleased  was  forbidden  by  the  thirteenth  amendment  to  the 
Constitution  of  the  United  States.  The  Supreme  Court 
said  that  such  an  interference  was  not  sufficient  to  be  pro- 
nounced involuntary  servitude  as  the  words  are  used  in  the 
thirteenth  amendment. 

The  arguments  in  the  decision  of  the  Supreme  Court  may 
be  stated  as  follows :  By  a  strict  definition  of  slavery  and 
involuntary  servitude  it  was  held  that  the  lack  of  power  to 
make  or  perform  contracts  was  not  embodied  within  the 
meaning  of  the  thirteenth  amendment.  "  It  is  said,  how- 
ever, that  one  of  the  disabilities  of  slavery,  one  of  the  indicia 
of  its  existence,  was  a  lack  of  power  to  make  or  perform 
contracts,  and  that  when  these  defendants,  by  intimidation 
and  force,  compelled  the  colored  men  named  in  the  indict- 
ment to  desist  from  performing  their  contracts,  they,  to  that 
extent,  reduced  those  parties  to  a  condition  of  slavery, — 
that  is,  of  subjection  to  the  will  of  the  defendants,  and  de- 
prived them  of  a  freeman's  power  to  perform  his  contract. 
But  every  wrong  done  to  an  individual  by  another,  acting 
singly  or  in  concert  with  others,  operates  pro  tanto  to 
abridge  some  of  the  freedom  to  which  the  individual  is  en- 
titled. A  freeman  has  a  right  to  be  protected  in  his  person 
from  assault  and  battery.  He  is  entitled  to  hold  his  prop- 
erty safe  from  trespass  or  appropriation ;  but  no  mere  per- 


2  See  pages  170-172. 


136     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

sonal  assault  or  trespass  or  appropriation  operates  to  reduce 
the  individual  to  a  condition  of  slavery."  Then  follows  a 
declaration  that  the  thirteenth  amendment  did  not  intend  to 
make  the  negroes  wards  of  the  nation,  but  only  to  give  them 
citizenship  and  protect  them  against  the  abridgment  of  the 
privileges  of  citizenship  by  state  action. 

Justice  Harlan  did  not  agree  with  the  arguments  of  the 
court  in  any  particular.  He  claimed  that  a  conspiracy  forc- 
ibly to  prevent  citizens  of  African  descent  from  contracting 
for  their  labor  as  they  pleased  infringed  or  violated  a  right 
or  privilege,  created  by,  derived  from,  or  dependent  upon 
the  Constitution  of  the  United  States,  because  (i)  the  in- 
fringement of  the  right  to  contract  for  one's  own  labor  is, 
within  the  meaning  of  the  Constitution,  slavery;  (2)  the 
thirteenth  amendment  not  only  abolished  slavery,  but  au- 
thorized Congress  to  make  this  abolition  effective  by  appro- 
priate legislation;  (3)  Congress  had  passed  such  appro- 
priate legislation  by  Par.  5508  of  the  Revised  Statutes, 
which  had  been  declared  constitutional  by  the  Supreme 
Court. 

As  is  shown  in  another  chapter,  the  case  of  Bailey  v.  Ala- 
bama, 211  U.  S.  452,  was  dismissed  on  a  technicahty.  This 
case  is  discussed  elsewhere.^  It  is  sufficient  to  say  here  that 
Justice  Harlan  in  his  dissent  argued  that  the  contention  of 
the  court  was  not  well  founded,  and  that  the  failure  of  the 
court  to  pass  upon  the  constitutionality  of  the  statute  in 
question  permitted  discriminatory  legislation. 

Berea  College  v.  Kentucky,  211  U.  S.  45,  involved  the 
constitutionality  of  a  law  of  Kentucky  making  it  unlawful 
for  negroes  and  whites  to  attend  the  same  schools.  In  the 
Supreme  Court  this  law  was  upheld  as  regarded  its  opera- 
tion upon  Berea  College,  a  corporation  of  the  State. 

As  will  be  shown  later,  Justice  Harlan  believed  that  a 
State  had  the  right  to  prevent  any  corporation  from  enter- 
ing its  borders,  but  after  a  corporation  had  begun  to  do  busi- 
ness there  he  did  not  think  that  because  of  this  right  the 

3  See  pages  164-166. 


EQUAL   PROTECTION   OF  THE  LAWS  1 37 

State  could  impose  any  restriction  it  might  please.  This 
doctrine  of  his,  combined  with  his  strong  desire  to  see  the 
colored  people  get  justice,  brought  forth  a  stinging  dissent 
from  him  in  the  Berea  College  case.  The  spirit  of  his  dis- 
sent here  is  not  materially  different  from  that  in  the  other 
cases  on  this  subject.  The  following  quotation  is  typical : 
"In  the  eye  of  the  law,  the  right  to  enjoy  one's  religious 
belief,  unmolested  by  any  human  power,  is  no  more  sacred 
nor  more  fully  or  distinctly  recognized  than  is  the  right  to 
impart  and  receive  instruction  not  harmful  to  the  public. 
The  denial  of  either  right  would  be  an  infringement  of  the 
liberty  inherent  in  the  freedom  secured  by  the  fundamental 
law." 

Justice  Harlan's  doctrine  as  to  the  position  which  the 
negroes  should  be  allowed  to  occupy  in  our  country  may  be 
stated  as  follows :  He  believed  that  they  should  occupy  the 
position  that  historically  they  were  intended  to  occupy  by 
the  thirteenth  and  fourteenth  amendments.  He  believed 
that  the  law  should  be  interpreted  as  it  was  meant  and  not 
as  the  court  thought  expedient  and  wise.  Though  it  may 
be  true  that  his  relation  to  the  negro  in  political  matters 
may  have  made  him  more  violent  in  his  dissents,  any  one 
who  will  look  fairly  at  the  question  must  conclude  that  his 
doctrine  was  legally  correct.  And  as  time  passes,  and  as 
both  classes  become  better  educated  and  broader  in  their 
views,  it  may  be  said  that  the  tendency  of  the  court  is  likely 
to  be  to  interpret  the  laws  largely  as  he  thought  they  should 
have  been  interpreted,  that  is,  as  historically  they  were 
meant. 

There  are  two  cases  representative  of  Justice  Harlan's 
doctrine  regarding  legislation  as  to  the  Chinese  immigrants 
in  this  country.  They  are  Baldwin  v.  Franks,  120  U.  S. 
678,  and  United  States  v.  Jung  Ah  Lung,  124  U.  S.  621. 

The  first  involved  the  following  points :  A  group  of  men 
in  California  drove  a  Chinaman  from  his  home  and  forbade 
his  doing  business  in  the  town  in  which  he  had  set  up  his 
laundry.     These  men  were   arraigned  before  the  United 


138    CONSTITUTIONAL   DOCTRINES   OF   JUSTICE    HARLAN 

States  circuit  court  and  punished  for  having  violated  cer- 
tain sections  of  the  Civil  Rights  Act.  Appeal  was  made  by- 
Baldwin  upon  writ  of  error  to  the  Supreme  Court  of  the 
United  States,  and  here  the  decision  of  the  circuit  court  was 
reversed. 

In  this  case  there  were  several  questions  to  be  answered, 
the  most  important  of  which  was  whether  such  acts  were  in 
violation  of  the  following  provisions  of  the  revised  statutes 
of  Congress,  being  portions  of  the  well-known  Civil  Rights 
Act :  Sections  5508,  5519,  and  5536.  If  they  were  violations 
of  any  of  these  sections,  was  the  decision  below  constitu- 
tionally correct?  In  each  point  the  court  held  as  follows: 
The  intent  of  Section  5519  was  to  impose  a  fine  upon  any 
person  or  group  of  persons  who  go  upon  the  premises  of 
another  for  the  purpose  of  depriving  him  of  the  equal  pro- 
tection of  the  laws.  That  of  Section  5508  was  to  make  it 
criminal  for  two  or  more  persons  to  threaten  or  in  any  way 
intimidate  any  citizen  in  the  enjoyment  of  the  rights  se- 
cured to  him  by  the  Constitution.  That  of  Section  5536 
was  to  impose  the  same  fine  upon  persons  conspiring  to  de- 
stroy or  hamper  the  force  of  the  government  of  the  United 
States.  Section  5519  had  already  been  declared  unconstitu- 
tional, but  the  question  was  raised  whether  the  same  ruling 
would  hold  regarding  aliens.  The  court  held  that  the 
statute  was  not  so  worded  as  to  be  applicable  to  aliens. 
Section  5536  was  likewise  declared  invalid.  Section  5508, 
however,  had  been  repeatedly  declared  constitutional.  The 
question  was,  therefore,  did  this  section  apply  to  this  par- 
ticular case?  The  court  answered  this  question  by  saying 
that  the  statute  applied  to  citizens  and  not  to  persons,  there- 
fore it  could  not  have  been  meant  to  apply  to  aliens. 

The  following  quotation  from  Justice  Harlan's  dissent 
will  indicate  his  answers  to  the  arguments  of  the  court: 
"  It  would  seem  from  the  decision  in  this  case,  that  if 
Chinamen,  having  a  right,  under  treaty,  to  remain  in  our 
country,  are  forcibly  driven  from  their  places  of  business, 
the  Government  of  the  United  States  is  without  power  in 


EQUAL   PROTECTION   OF  THE   LAWS  1 39 

its  own  courts  to  protect  them  against  such  violence,  or 
to  punish  those  who,  in  this  way  subject  them  to  ill  treat- 
ment. If  this  be  so,  as  to  Chinamen  lawfully  in  the  United 
States,  it  must  be  equally  true  as  to  citizens,  or  subjects  of 
every  other  foreign  Nation,  residing  or  doing  business  here 
under  the  sanction  of  treaties  with  their  respective  gov- 
ernments. I  do  not  think  that  such  is  the  present  state  of 
the  law." 

In  reference  to  the  assertion  of  the  court  that  the  act  did 
not  apply  to  aliens,  he  said  that  since  further  on  in  the  act 
the  word  "another"  instead  of  "citizen"  occurred,  Con- 
gress must  have  had  in  mind  any  other  person,  whether  a 
citizen  or  not. 

He  again  contended  that  in  spite  of  the  previous  decisions 
regarding  Section  5519,  it  was  constitutional  as  appropriate 
legislation  to  secure  rights  guaranteed  under  the  thirteenth 
and  fourteenth  amendments.  "If  Congress,  upon  looking 
over  the  whole  ground,  determined  that  an  effectual  and 
appropriate  mode  to  secure  such  protection  was  to  proceed 
directly  against  a  combination  of  individuals,  who  sought, 
by  conspiracy  or  by  violent  means,  to  defeat  the  enjoyment 
of  the  right  given  by  the  Constitution,  I  do  not  see  upon 
what  ground  the  court  can  question  the  validity  of  legisla- 
tion to  that  end."  That  is,  of  course,  but  a  reiteration  of 
his  disapproval  of  the  declaration  of  unconstitutionality  in 
the  Civil  Rights  Cases.  Justice  Harlan's  dissent  from  this 
case,  therefore,  was  simply  a  call  to  the  nation  to  stand  by 
its  treaty  obligations  to  aliens  regardless  of  race  or  other 
considerations. 

The  case  of  the  United  States  v.  Jung  Ah  Lung  contains 
what  appears  to  be  a  departure  from  Justice  Harlan's  usual 
mode  of  dissent,  but  a  close  examination  shows  that  it  was 
not  a  departure.  The  case  in  question  came  up  from  the 
United  States  circuit  court  for  the  district  of  California. 
It  was  an  appeal  to  review  the  decision  of  this  court  issu- 
ing a  writ  of  habeas  corpus  to  immigration  authorities  who 
held  a  Chinaman  because  of  his  inability  to  produce  a  cer- 


140     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

tificate  which  would  have  shown  that  he  was  a  laborer  in 
this  country  prior  to  the  passage  of  the  Chinese  exclusion 
acts,  and  which  would  have,  therefore,  given  him  the  right 
to  readmission  into  this  country.  It  appeared  that  Jung 
Ah  Lung  had  been  captured  by  pirates  and  had  been  robbed 
of  this  certificate,  which  according  to  the  law  he  was  re- 
quired to  produce  before  he  could  be  allowed  to  reenter  this 
country.  The  circuit  court  denied  the  claim  of  the  immi- 
gration officials  that  their  decision  was  final,  and  gave  the 
Chinaman  a  hearing. 

As  it  appeared  from  other  evidence  satisfactory  to  the 
court  that  he  was  the  same  man  to  whom  this  certificate 
had  been  issued,  and  that,  in  the  light  of  every  consideration 
except  the  production  of  the  certificate,  he  was  entitled  to 
enter,  the  circuit  court  ordered  his  release.  This  order  the 
Supreme  Court  of  the  United  States  upheld. 

Justice  Harlan,  with  Justices  Field  and  Lamar  concur- 
ring, contended  that  the  action  of  the  circuit  court  was 
wrong.  The  law  expressly  stated  that  the  certificate  should 
be  produced,  and  admission  without  it  was  illegal.  The 
reason  for  their  contention  was,  in  the  first  place,  that  ad- 
mission through  one  port  ought  not  to  have  been  allowed  on 
any  condition  that  could  not  be  allowed  in  another  port. 
Immigration  laws  in  order  to  be  constitutional  must  be  uni- 
form. Since  the  defendant  could  not  have  been  admitted 
under  the  same  circumstances  through  any  port  except  the 
one  from  which  he  departed,  he  ought  not  to  have  been 
admitted  through  that  one. 

In  the  second  place,  since  the  law  read  that  "said  cer- 
tificate shall  be  the  only  evidence  permissible  to  establish 
his  right  to  re-enter,"  the  court  did  not  have  a  right  to 
accept  any  other  evidence.  "If  appellee's  certificate  was 
forcibly  taken  from  him  by  a  band  of  pirates,  while  he  was 
absent,  that  is  his  misfortune.  That  fact  ought  not  to  defeat 
what  was  manifestly  the  intention  of  the  legislative  branch 
of  the  Government.  Congress,  in  the  Act  of  1882,  said, 
in  respect  to  a  Chinese  laborer  who  was  here  when  the 


EQUAL   PROTECTION    OF   THE   LAWS  I4I 

treaty  of  1880  was  made,  and  who  afterwards  left  the  coun- 
try, that  the  *  proper  evidence '  of  his  right  to  go  and  come 
from  the  United  States  was  the  certificate  he  received  from 
the  collector  of  customs  at  the  time  of  his  departure,  and 
that  he  should  be  entitled  to  re-enter  '  upon  producing  and 
delivering  such  certificate '  to  the  collector  of  customs  of 
the  district  at  which  he  seeks  to  re-enter;  while  this  court 
decides  that  he  may  re-enter  the  United  States  without  pro- 
ducing such  certificate,  and  upon  satisfactory  evidence  that 
he  once  had  it,  but  was  unable  to  produce  it.  As  by  the 
very  terms  of  the  act,  a  Chinese  laborer,  who  was  here  on 
November  17,  1880,  is  not  excepted  from  the  provision 
absolutely  suspending  the  coming  of  that  class  to  this  coun- 
try for  a  given  number  of  years,  unless  he  produces  to  the 
collector  the  certificate  issued  to  him,  we  cannot  assent  to 
the  judgment  of  the  court." 

The  loss  of  that  certificate  would  seem  to  be  similar  to 
the  loss  of  a  ticket  of  any  kind.  As  a  matter  of  practice 
no  one  assumes  that  if  a  person  has  lost  his  ticket  he  will 
be  allowed  to  ride  on  a  train  or  got  to  a  theatre.  In  the 
same  way  there  seems  to  be  no  reason  why  any  one  should 
have  assumed  that  a  Chinaman  could  have  been  readmitted 
to  this  country  without  his  certificate  of  admission. 

There  is  one  case  of  particular  interest  regarding  attempts 
at  discrimination  against  Indians.  There  seem  to  be  few 
attempts  to  deny  the  equal  protection  of  the  laws  to  them, 
and  this  is  an  interesting  fact  in  its  relation  to  race  preju- 
dice. Though  it  must  be  admitted  that  the  Indians  have 
not  at  all  times  been  fairly  dealt  with  in  other  respects  by 
the  white  people,  it  cannot  be  said  that  the  race  prejudice 
against  them  has  been  strong.  It  is  an  interesting  observa- 
tion that  the  presence  of  any  white  blood  in  their  veins 
tends  to  classify  them  as  white  rather  than  red  men;  and 
people  possessing  Indian  blood  are  often  proud  of  the  fact. 

The  case  in  question,  however,  does  contain  an  element 
of  denial  of  the  equal  protection  of  the  laws.  The  case  is 
Elk  V.  Wilkins,  112  U.  S.  94.  It  came  by  writ  of  error 
10 


142    CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

from  the  United  States  district  court  for  Nebraska,  and 
arose  because  of  the  fact  that  a  registration  officer  had 
denied  to  the  Indian  the  right  to  register  as  an  elector  of 
the  city  of  Omaha.  Elk,  the  Indian,  had  severed  his  tribal 
connections,  and  had  taken  up  his  abode  among  the  white 
citizens  of  Nebraska.  Having  been  denied  the  right  to 
vote,  and  the  necessary  requirements  being  present  for  the 
recognition  of  the  suit  by  the  district  court,  he  entered  suit 
against  Wilkins,  the  registration  officer,  on  the  plea  that  he 
had  been  denied  rights  granted  to  him  under  the  fourteenth 
and  fifteenth  amendments  of  the  United  States  Constitu- 
tion,— under  the  fourteenth  amendment  in  that  he  was  born 
in  the  United  States  and  hence  was  a  citizen  thereof,  and 
under  the  fifteenth  amendment  in  that  he  had  been  denied 
the  right  to  vote  because  of  race.  The  lower  court  decided 
against  him,  and  the  decision  was  sustained  in  the  Supreme 
Court. 

The  reason  for  this  decision  was  that  Indians  could  not 
become  citizens  except  through  the  regular  process  of  nat- 
uralization. Since  this  process  had  not  been  complied  with, 
the  Indian  in  question  was  not  a  citizen.  Nor  did  the  fact 
that  he  was  born  in  the  United  States  alter  the  situation. 
The  reason  for  such  a  decree  was  the  fact  that  Congress 
had  in  all  respects  dealt  with  the  Indians  as  if  they  were 
aliens,  and  had  passed  no  statute  making  citizens  of  them. 
Hence  the  denial  of  the  right  to  vote  did  not  need  to  be 
considered. 

Justice  Harlan  in  his  dissent  established  the  fact  that  the 
Indian  in  question  had  taken  up  his  abode  in  the  State  in 
such  a  way  as  to  be  subject  to  taxation.  This  point  estab- 
lished, he  showed  that  the  words  "  excluding  Indians  not 
taxed  "  as  inserted  in  the  fourteenth  amendment  recognized 
that  there  were  a  number  of  Indians  in  the  States  who 
were  taxed,  and  that  these  were  not  excluded  from  citizen- 
ship, but  were  impliedly  included.  From  this,  therefore, 
he  concluded  that  Indians  in  the  position  which  Elk  occu- 
pied were  recognized  as  citizens  by  the  fourteenth  amend- 


EQUAL   PROTECTION    OF  THE  LAWS  1 43 

ment.  This  assertion  he  reinforced  by  showing  by  quota- 
tions that  the  men  who  drew  up  the  amendment  meant  it 
that  way.  Furthermore,  he  showed  that  in  the  act  of  Con- 
gress passed  in  1886  regulating  the  relations  with  Indians 
the  same  phrase  was  used  and  with  the  same  meaning. 

The  following  conclusion  is  significant :  "  Born,  there- 
fore, in  the  territory,  under  the  dominion  and  within  the 
jurisdictional  limits  of  the  United  States,  plaintiff  has  ac- 
quired, as  was  his  undoubted  right,  a  residence  in  one  of 
the  States,  with  her  consent,  and  is  subject  to  taxation  and 
to  all  other  burdens  imposed  by  her  upon  residents  of  every 
race.  If  he  did  not  acquire  national  citizenship  on  aband- 
oning his  tribe  and  becoming  subject  by  residence  in  one  of 
the  States  to  the  complete  jurisdiction  of  the  United  States, 
then  the  14th  Amendment,  has  wholly  failed  to  accomplish, 
in  respect  to  the  Indian  race,  what  we  think  was  intended 
by  it;  and  there  is  still  in  this  country  a  despised  and  re- 
jected class  of  persons,  with  no  nationality  whatever;  who, 
born  in  our  country,  owing  no  allegiance  to  any  foreign 
power,  and  subject,  as  residents  of  the  States,  to  all  the 
burdens  of  government,  are  yet  not  members  of  any  polit- 
ical community  nor  entitled  to  any  of  the  rights,  privileges 
or  immunities  of  citizens  of  the  United  States." 

It  may  be  noted  that  this  situation  was  alleviated  by  an 
act  of  Congress,  passed  in  1887,  which  made  citizens  of 
such  men  whether  they  wished  citizenship  or  not. 

Corporations. — Since  the  case  of  Paul  v.  Virginia,  8 
Wall.  168,  which  determined  the  fact  that  corporations  are 
citizens  in  the  constitutional  sense,  was  decided  prior  to 
Justice  Harlan's  appointment  as  associate  justice,  it  is  not 
possible  to  say  what  would  have  been  exactly  his  view  on 
this  subject.  There  is,  however,  in  the  case  of  Atchison, 
Topeka,  and  Santa  Fe  R.  Co.  v.  Matthews,  174  U.  S.  96, 
an  interesting  expression  of  his  opinion  on  this  general  sub- 
ject, but  since  this  case  did  not  present  the  question  squarely 
to  the  court,  his  constitutional  doctrine  on  the  subject  can- 
not be  deduced. 


144    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

This  case  came  from  the  supreme  court  of  Kansas,  and 
involved  the  constitutionality  of  a  statute  of  that  State 
which  required  that  a  railroad  company,  in  case  of  suit  for 
damages  against  it  by  an  injured  person,  should  pay,  in 
addition  to  the  damages  awarded  by  the  court,  the  attor- 
neys' fees  of  the  plaintiff.  One  of  the  questions  raised  was 
whether  the  statute  did  not  discriminate  against  the  rail- 
road company  in  that  it  stipulated  that  the  company  should 
pay  the  fees  if  the  suit  went  against  them,  and  did  not 
force  the  plaintiffs  to  pay  the  fees  if  the  suit  went  in  favor 
of  the  company.  The  court,  nevertheless,  upheld  the  stat- 
ute on  the  ground  that  the  classification  was  just  in  that  it 
was  made  because  of  the  nature  of  the  business,  the  rail- 
way business  being  one  which  people  enter  at  their  peril. 

Though  Justice  Harlan's  argument  in  this  case  may  not 
seem  fair,  it  is  extremely  interesting.  After  reviewing  the 
decision  in  Gulf,  Colorado  and  Santa  Fe  R.  Co.  v.  ElHs, 
165  U.  S.  150,  he  said:  "If  the  opinions  in  the  Ellis  Case 
and  in  this  case  be  taken  together,  the  state  of  the  law  seems 
to  be  this : 

"  I.  A  state  may  not  require  a  railroad  company  sued  for 
negligently  killing  an  animal  to  pay  to  the  plaintiff,  in  ad- 
dition to  the  damages  proved  and  the  ordinary  costs,  a 
reasonable  attorney's  fee,  when  it  does  not  allow  the  cor- 
poration when  its  defense  is  sustained  to  recover  a  like 
attorney's  fee  from  the  plaintiff. 

"2.  A  state  may  require  a  railroad  company  sued  for 
and  adjudged  Hable  to  damages  arising  from  fire  caused  by 
the  operation  of  its  road,  to  pay  to  the  plaintiff,  in  addition 
to  the  damages  proved  and  the  ordinary  costs,  a  reasonable 
attorney's  fee,  even  if  it  does  not  allow  the  corporation 
when  successful  in  its  defense  to  recover  a  like  attorney's 
fee  from  the  plaintiff.  .  .  . 

"  Having  assented  in  the  Ellis  Case  to  the  first  proposi- 
tion, I  cannot  give  my  assent  to  the  suggestion  that  the 
second  proposition  is  consistent  with  the  principles  there 
laid   down.     Placing  the  present  case  beside  the    former 


EQUAL   PROTECTION    OF   THE   LAWS  1 45 

case,  I  am  not  astute  enough  to  perceive  that  the  Kansas 
statute  is  consistent  with  the  Fourteenth  Amendment,  if 
the  Texas  statute  be  unconstitutional." 

This  gives  the  main  contention  in  his  dissent.  But  there 
is  another  that  should  be  noted,  namely,  that  the  statute  did 
not  apply  to  all  corporations,  but  only  to  railroad  companies : 
"Taken  in  connection  with  the  principles  of  general  law 
recognized  in  that  state,  that  statute,  although  not  imposing 
any  special  duties  upon  railroad  companies,  in  effect  says  to 
the  plaintiffs,  Matthews  and  Trudell,  the  owners  of  the 
elevator  property — indeed  it  says  in  effect  to  every  individ- 
ual citizen,  and  for  that  matter  every  corporation  in  the 
state:  *  If  you  are  sued  by  a  railroad  corporation  for  dam- 
ages done  to  its  property  by  fire  caused  by  your  negligence, 
or  in  the  use  of  your  property,  the  recovery  against  you 
shall  not  exceed  the  damages  proved  and  the  ordinary  costs 
of  the  suit.  But  if  your  property  is  destroyed  by  fire 
caused  by  the  operation  of  the  railroad  belonging  to  the 
same  corporation,  and  you  succeed  in  an  action  brought  to 
recover  damages,  you  may  recover,  in  addition  to  the  dam- 
ages proved  and  the  ordinary  costs  of  suit,  a  reasonable 
attorney's  fee;  and  if  you  fail  in  such  action  no  attorney's 
fee  shall  be  taxed  against  you.'  In  my  judgment,  such  dis- 
crimination against  a  litigant  is  not  consistent  with  the 
equal  protection  of  the  laws  secured  by  the  Fourteenth 
Amendment." 

When  it  is  considered  what  the  court  really  did  in  these 
two  cases,  there  is  small  wonder  that  there  was  objection 
on  the  part  of  some  one.  In  one  instance  a  Texas  statute 
had  been  declared  unconstitutional  in  a  suit  in  which  an 
individual  had  sought  the  benefit  of  its  operation,  while  in 
the  second  instance  a  partnership  firm  had  been  granted  the 
protection  of  the  same  sort  of  law  that  had  been  declared 
unconstitutional  in  Texas. 

One  of  the  most  significant  cases  on  the  subject  of  taxa- 
tion of  corporations,  the  Fire  Association  of  Philadelphia 


146    CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

V.  New  York,  119  U.  S.  110,  came  by  writ  of  error  from 
the  supreme  court  of  New  York.  A  law  of  New  York  re- 
quired that  a  fire-insurance  corporation  chartered  in  another 
State  should  pay  a  greater  tax  than  domestic  corporations 
did.  The  question  to  be  answered  was  whether  the  statute 
was  unconstitutional  in  that  it  denied  to  such  corporations 
the  equal  protection  of  the  laws. 

The  argument  of  the  court  in  this  case  can  best  be  given 
in  a  single  quotation :  "  The  Pennsylvania  corporation  came 
into  the  State  of  New  York  to  do  business,  by  the  consent 
of  the  State,  under  the  act  of  1853,  with  a  license  granted 
for  a  year,  and  has  received  such  license  annually,  to  run 
for  a  year.  It  is  within  the  State  for  any  given  year  under 
such  license,  and  subject  to  the  conditions  prescribed  by 
the  statute.  The  State  having  the  power  to  exclude  en- 
tirely, has  the  power  to  change  the  conditions  of  admission 
at  any  time,  for  the  future,  .  .  .  and  the  foreign  corpora- 
tion until  it  pays  such  license  fee  is  not  admitted  within  the 
State  or  within  its  jurisdiction.  It  is  outside,  at  the  thresh- 
old, seeking  admission,  with  consent  not  yet  given.  The 
Act  of  1865  had  been  passed  when  the  corporation  first 
established  an  agency  within  the  State.  The  amendment 
of  1875  changed  the  Act  of  1865  only  by  giving  to  the 
superintendent  the  power  of  remitting  the  fees  and  charges 
required  to  be  collected  by  then  existing  laws.  There- 
fore, the  corporation  was  at  all  times,  after  1872,  subject, 
as  a  prerequisite  to  its  power  to  do  business  in  New  York, 
to  the  same  license  fee  its  own  State  might  thereafter  im- 
pose on  New  York  companies  doing  business  in  Pennsyl- 
vania. By  going  into  the  State  of  New  York  in  1872,  it 
assented  to  such  prerequisites  as  a  condition  of  its  admis- 
sion within  the  jurisdiction  of  New  York.  It  could  not  be 
of  right  within  such  jurisdiction,  until  it  should  receive  the 
consent  of  the  State  to  its  entrance  therein  under  the  new 
provisions,  such  a  consent  could  not  be  given  until  the  tax, 
as  a  license  fee  for  the  future,  should  be  paid." 

Thus  it  is  seen  that  the  argument  of  the  court  was,  briefly, 


EQUAL   PROTECTION    OF  THE   LAWS  1 4/ 

this :  Since  a  corporation  is  a  citizen  in  a  different  sense 
from  an  ordinary  person,  different  requirements  may  be 
made  for  it.  Since  a  State  may  forbid  a  corporation  to  do 
business  at  all  within  its  limits,  it  may  put  any  restrictions 
it  pleases  upon  its  doing  business  there. 

Justice  Harlan  agreed  that  a  State  had  a  right  to  exclude 
a  corporation  from  its  bounds,  but  he  would  not  accept  the 
added  corollary  that  the  State  could,  because  of  this  power 
of  exclusion,  subject  the  corporation  doing  business  within 
its  limits  to  any  restrictions  it  might  choose. 

He  said:  ''Even  if  it  were  conceded  that  a  State,  which 
provides  for  the  organization,  under  her  own  laws,  of  cor- 
porations for  the  transaction  of  every  kind  of  business, 
could  arbitrarily  exclude  from  her  limits  similar  corpora- 
tions from  the  remaining  States,  and  declare  all  contracts 
made  within  her  jurisdiction  with  corporations  from  other 
States,  to  be  void — concessions  to  be  made  only  for  the  pur- 
poses of  this  case — it  would  not  follow  that  she  could  sub- 
ject corporations  of  other  States,  doing  business  within 
her  limits  under  a  license  from  the  proper  department,  to 
higher  taxes  than  she  imposes  upon  other  corporations  of 
the  same  class  from  the  remaining  States." 

Coming  more  nearly  to  the  point  at  issue,  he  said :  "  The 
denial  of  the  equal  protection  of  the  laws  may  occur  in 
various  ways.  It  will  most  often  occur  in  the  enforcement 
of  laws  imposing  taxes.  An  individual  is  denied  the  equal 
protection  of  the  laws  if  his  property  is  subjected  by  the 
State  to  higher  taxation  than  is  imposed  upon  like  property 
of  other  individuals  in  the  same  community.  So,  a  corpora- 
tion is  denied  that  protection  when  its  property  is  subjected 
by  the  State,  under  whose  laws  it  is  organized,  to  more 
burdensome  taxation  than  is  imposed  upon  other  domestic 
corporations  of  the  same  class.  So,  also,  a  corporation  of 
one  State,  doing  business,  by  its  agents,  in  another  State  by 
the  latter's  consent,  is  denied  the  equal  protection  of  the 
laws,  if  its  business  there  is  subjected  to  higher  taxation 
than  is  imposed  upon  the  business  of  like  corporations  of 


148    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

other  States.  These  propositions  seem  to  me  to  be  indis- 
putable. They  are  necessarily  involved  in  the  concession 
that  corporations,  like  individuals,  are  entitled  to  the  equal 
protection  of  the  laws." 

He  said  further :  "  It  would  seem  to  me  to  be  the  result 
of  the  decision  in  this  case,  that  New  York  may  prescribe 
such  varying  rates  of  taxation  upon  insurance  corporations 
of  the  remaining  thirty-seven  States,  within  her  jurisdic- 
tion, as  she  chooses — the  rate  for  corporations  from  each 
State  differing  from  the  rate  established  for  corporations 
of  the  same  class  from  all  other  States,  and  the  rate  in  re- 
spect to  corporations  of  other  States  being  higher  than  she 
imposes  upon  her  own  corporations  of  the  same  class.  Such 
legislation  would  be  a  species  of  commercial  warfare  by 
one  State  against  the  others,  and  would  be  hostile  to  the 
whole  spirit  of  the  Constitution,  and  particularly  the  Four- 
teenth Amendment,  securing  to  all  persons  within  the  juris- 
diction of  the  respective  States  the  equal  protection  of  the 
laws." 

In  this  case  is  seen  the  first  promulgation  of  Justice  Har- 
lan's doctrine  that  wherever  a  corporation  has  a  right  to  do 
business  it  has  a  right  to  the  equal  protection  of  the  laws.  His 
reason  for  holding  to  this  doctrine  is  well  stated  in  the  last 
quotation  given,  namely,  that  if  such  discrimination  were 
allowed  it  would  give  rise  to  a  condition  of  commercial 
warfare  that  would  be  unwholesome  in  many  ways. 

This  same  doctrine  was  announced  in  his  dissent  from 
People,  ex  rel.  Parke,  Davis,  and  Co.  v.  Roberts,  171  U.  S. 
658.  This  case,  however,  presented  the  question  in  a. 
slightly  different  form.  Here  arose  the  question  of  the 
constitutionality  of  a  statute  of  the  State  of  New  York 
which  imposed  a  higher  tax  on  corporations  which  manu- 
factured their  goods  outside  of  the  State  and  sent  them 
there  to  be  sold  than  was  imposed  on  either  New  York  or 
out-of -the- State  corporations  which  operated  plants  within 
the  State.  The  claim  was  made  by  Parke,  Davis,  and  Com- 
pany, an  out-of-the-State  corporation  which  wished  to  do- 


EQUAL   PROTECTION    OF   THE   LAWS  I49 

business  in  the  State  of  New  York  without  setting  up  an 
establishment  in  the  State,  that  this  law  was  unconstitutional 
in  that  it  denied  to  them  the  equal  protection  of  the  laws. 

A  brief  quotation  will  make  clear  the  argument  of  the 
court:  "It  is  said  that  the  operation  of  that  portion  of  this 
taxing  law,  which  exempts  from  a  business  tax  corporations 
which  are  wholly  engaged  in  manufacturing  within  the 
State  of  New  York,  is  to  encourage  manufacturing  corpora- 
tions which  seek  to  do  business  in  that  State  to  bring  their 
plants  into  New  York.  Such  may  be  the  tendency  of  the 
legislation,  but  so  long  as  the  privilege  is  not  restricted  to 
New  York  corporations,  it  is  not  perceived  that  thereby  any 
ground  is  afforded  to  justify  the  intervention  of  the  Federal 
courts." 

Justice  Harlan's  reply  to  this  assertion  is  very  convinc- 
ing. He  said,  after  an  extended  discussion  of  previous 
cases :  "  I  am  unable  to  reconcile  the  opinion  and  judgment 
in  the  present  case  with  the  principles  announced  in  the 
above  cases.  A  tax  upon  the  capital  employed  by  a  manu- 
facturing corporation  or  company  is  pro  tanto  a  tax  upon 
the  goods  manufactured  by  it.  If  this  be  not  so,  there  are 
many  expressions  in  the  former  opinions  of  this  court  which 
should  be  withdrawn  or  modified.  A  corporation  or  com- 
pany wholly  engaged  in  manufacture  in  New  York  has  an 
advantage,  in  the  sale  of  its  goods  in  the  markets  of  that 
state,  over  a  corporation  or  company  manufacturing  like 
goods  in  other  states,  if  the  former  is  altogether  exempted 
from  taxation  in  respect  of  its  franchise  or  business,  and 
the  latter  subjected  to  taxation  of  its  franchise  or  business, 
measured  by  the  amount  of  its  capital  employed  in  New 
York.  That  state  may  undoubtedly  tax  capital  employed 
within  its  limits  by  corporations  or  companies  of  other 
states,  but  it  cannot  impose  restrictions  that  will  necessarily 
prevent  such  corporations  or  companies  from  selling  their 
goods  in  New  York  upon  terms  of  equality  with  corpora- 
tions or  companies  wholly  engaged  there  in  manufacturing 
goods  of  like  kind.  ...  In  my  judgment,  this  statute  cannot 


150     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

be  sustained  in  its  application  to  the  plaintiff  in  error  with- 
out recognizing  the  power  of  New  York,  so  far  as  the 
Federal  Constitution  is  concerned,  to  enact  such  statutes  as 
will  by  their  necessary  operation  amount  to  a  tariff  protect- 
ing goods  manufactured  in  that  state  against  competition  in 
the  market  there  with  goods  manufactured  in  other  states. 
And  if  such  legislation  as  is  embodied  in  the  statute  in 
question  is  held  to  be  consistent  with  the  Federal  Constitu- 
tion, why  may  not  New  York,  while  exempting  from  taxa- 
tion the  franchises  or  business  of  corporations  or  com- 
panies wholly  engaged  in  carrying  on  their  manufacturing 
in  that  State,  put  such  taxation  upon  the  franchise  or  busi- 
ness of  corporations  or  companies  doing  business  in  that 
State,  but  not  wholly  engaged  in  manufacture  there,  as  will 
amount  to  an  absolute  prohibition  upon  the  sale  in  New 
York  of  goods  manufactured  in  other  states?  ...  I  had 
supposed  that  the  Constitution  of  the  United  States  had 
established  absolute  free  trade  among  the  States  of  the 
Union,  and  that  freedom  from  injurious  discrimination  in 
the  markets  of  any  state,  against  goods  manufactured  in  this 
country,  was  a  vital  principle  of  constitutional  law." 

The  case  of  Fidelity  Mutual  Life  Insurance  Co.  v. 
Mettler,  185  U.  S.  308,  contains  a  similar  point.  In  this 
case  the  court  upheld  a  statute  of  Texas  which  directed  that 
life  and  health  insurance  companies  which  should  default 
in  the  payment  of  their  policies  should  pay  as  damages,  in 
addition  to  the  face  of  the  poHcy,  twelve  per  cent  of  the 
original  amount,  together  with  reasonable  attorneys'  fees 
that  might  have  been  made  necessary  in  the  collection  of  the 
money  due  to  be  paid.  The  claim  was  made  that  this 
statute  was  unconstitutional  in  that  it  discriminated  against 
health  and  life  insurance  companies  as  opposed  to  other 
insurance  companies,  and  therefore  denied  to  them  the  equal 
protection  of  the  laws.  The  court  held  that  the  statute  was 
constitutional  in  that  it  was  a  condition  imposed  by  a  State 
upon  the  right  of  a  corporation  to  do  business  within  its 
borders. 


EQUAL   PROTECTION    OF   THE   LAWS  I5I 

In  his  dissent  from  this  case  is  stated  even  more  clearly 
Justice  Harlan's  doctrine  as  to  the  constitutional  rights  of 
a  corporation  doing  business  in  any  State :  "  It  is  one  thing 
for  a  state  to  forbid  a  particular  foreign  corporation,  or  a 
particular  class  of  foreign  corporations,  from  doing  busi- 
ness at  all  within  its  limits.  It  is  quite  another  thing  for 
a  state  to  admit  or  license  foreign  corporations  to  do  busi- 
ness within  its  limits,  and  then  subject  them  to  some 
statutory  provision  that  is  repugnant  to  the  Constitution  of 
the  United  States.  If  a  corporation,  doing  business  in 
Texas  under  its  licence  or  with  its  consent,  insists  that  a 
particular  statute  or  regulation  is  in  violation  of  the  Con- 
stitution of  the  United  States  and  cannot  therefore  be  en- 
forced against  it,  the  State  need  only  reply — such  seems  to  be 
the  logical  result  of  the  present  decision — that  the  statute  or 
regulation  is  a  condition  of  the  right  of  the  corporation  to 
do  business  in  the  state,  and,  whether  constitutional  or  not, 
must  be  respected  by  the  corporation.  Corporations  created 
by  the  several  states  are  necessary  to  the  conduct  of  the 
business  of  the  country ;  and  it  is  a  startling  proposition  that 
a  state  may  permit  a  corporation  to  do  business  within  its 
limits,  and  by  that  act  acquire  the  right  to  subject  the  cor- 
poration to  regulations  that  may  be  inconsistent  with  the 
supreme  law  of  the  land." 

It  was  a  good  while,  however,  before  the  other  members 
of  the  court  seemed  to  see  his  point.  They  had  gone  on  the 
assumption  that  a  whole  is  the  sum  of  its  parts,  whereas  the 
proposition  which  they  were  facing  was  not  one  of  geom- 
etry, but  of  business.  The  analogy  did  not,  therefore,  hold. 
In  the  case  of  Western  Union  Telegraph  Co.  v.  Kansas,  216 
U.  S.  I,  they  finally  saw  this,  and  Justice  Harlan  was  him- 
self called  upon  to  deliver  the  opinion  of  the  court.  He 
found  opportunity  to  express  in  an  affirmative  way  his  long 
cherished  doctrine :  "  The  exaction  from  a  foreign  telegraph 
company  for  the  benefit  of  the  permanent  school  fund,  under 
the  authority  of  Kan.  Gen.  Stat.  1901,  p.  280,  of  a  'charter 
fee '  of  a  given  per  cent  of  its  entire  authorized  capital  stock, 


152    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

as  a  condition  of  continuing  to  do  local  business  in  the  state, 
is  invalid  under  the  commerce  and  due-process-of-law 
clauses  of  the  Federal  Constitution,  as  necessarily  amount- 
ing to  a  burden  and  tax  on  the  company's  interstate  business 
and  on  its  property  located  or  used  outside  the  state." 
Though  this  decision  was  delivered  under  the  commerce  and 
due  process  clauses,  and  not  under  the  equal  protection 
provision,  the  principle  was  the  same. 


CHAPTER  VI 
Jurisdiction  of  Courts 

Removal  of  Suits.- — The  question  seems  to  be  settled  that 
if  a  case  has  been  decided  in  a  state  court  it  is  then  too  late 
to  remove  it  into  a  lower  federal  court.  But  some  very 
interesting  points  come  up  in  determining  when  the  question 
at  issue  in  a  suit  may  be  termed  res  judicata.  A  typical  in- 
stance of  this  kind  occurred  in  the  case  of  Congress  and 
Empire  Spring  Co.  v.  Knowlton,  103  U.  S.  49.  Here  the 
Supreme  Court  affirmed  a  decision  of  the  United  States 
circuit  court  for  the  northern  district  of  New  York,  which 
had  asserted  that  money  paid  on  an  illegal  contract  could 
on  certain  conditions  be  recovered.  The  suit  might  have 
been  brought  in  the  federal  court  because  of  diversity  of 
citizenship,  and  the  question  before  the  Supreme  Court  was 
whether  there  was  sufficient  evidence  that  the  case  had  been 
decided  in  the  New  York  court  to  prevent  the  lower  federal 
court  from  taking  jurisdiction  and  deciding  the  case  re- 
gardless of  any  other  decision.  The  Supreme  Court  said 
that  there  was  not,  but  Justice  Harlan  said  that  there  was. 

The  reason  why  the  court  held  that  this  suit  had  not  been 
decided  was  that  there  was  not  sufficient  evidence  on  the 
record  to  show  that  fact.  "  It  is  suggested  by  the  counsel 
for  the  plaintiff  in  error,  that  the  Court  of  Appeals  of  the 
State  of  New  York  has  in  this  identical  suit,  upon  the  same 
state  of  facts,  adjudicated  the  rights  of  the  parties,  and  this 
court  ought  to  consider  the  questions  raised  in  this  case  as 
res  judicata. 

"  The  reply  to  this  suggestion  is,  that  it  nowhere  appears 
in  the  record  that  this  case  was  ever  before  the  Court  of 
Appeals,  or  that  it  was  ever  decided  by  any  court  except  the 
United  States  Circuit  Court  for  the  Northern  District  of 
New  York,  from  which  the  case  has  been  brought  to  this 

153 


154    CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

court  on  error.     We  cannot  consider  facts  not  brought  to 
our  notice  by  the  record." 

Justice  Harlan  knew  that  when  the  court  desired  to  do 
so  it  sometimes  considered  facts  not  brought  to  its  notice 
by  the  record,  and  he  contended  that  on  this  occasion  the 
evidence  was  sufficient.  "  It  is,  in  my  judgment,"  he  said, 
"an  immaterial  circumstance,  that  the  present  transcript 
does  not  contain  the  proceedings  had  in  the  Commission  of 
Appeals.  An  examination  of  the  case  reported  in  57  N.  Y. 
shows  beyond  question,  that  it  is  the  identical  case  now 
before  us ;  at  any  rate,  that  it  was  a  case  between  the  same 
parties  who  are  now  before  us,  and  that  it  involved  the  same 
issues  that  are  here  presented  for  our  determination.  We 
know  that  the  adjudication  in  that  court  was  long  prior  to 
the  removal  of  this  case  into  the  federal  court.  We  know 
also  that  the  questions  decided  in  the  Circuit  Court,  and 
which  we  are  now  asked  to  determine,  have  been  once 
passed  upon,  between  the  same  parties,  in  a  court  of  com- 
petent jurisdiction.  All  this  plainly  appears  upon  the  face 
of  the  decision  reported  in  57  N.  Y.  The  defendants  in 
error  should  not,  therefore,  be  permitted  to  escape  the  legal 
effect  of  that  decision  by  a  removal  of  the  case  into  the 
Circuit  Court  of  the  United  States."  This  comment  Justice 
Harlan  had  previously  reinforced  by  the  assertion  that  the 
"learned  District  Judge,  who  tried  the  case  in  the  Circuit 
Court,  opened  his  opinion,  which  is  part  of  the  transcript, 
with  the  statement  that  'the  case  comes  here  by  removal 
from  the  State  court,  after  a  decision  adverse  to  the  plain- 
tiff by  the  Commission  of  Appeals,  reversing  the  judgment 
of  the  Supreme  Court  in  favor  of  plaintiff,  and  ordering  a 
new  trial.*  He  then  proceeds  to  determine  the  case  upon 
principles  of  law  different  from  those  announced  by  the 
Commission  of  Appeals." 

Justice  Harlan's  contention  here  was  that  even  if  the 
record  itself  did  not  show  that  the  case  had  been  tried 
before,  extensive  evidence  showing  that  the  case  had  been 
tried  should  be  accepted  as  determining  the  fact. 


JURISDICTION    OF   COURTS  1 55 

Another  case  directly  connected  with  the  subject  of  re- 
moval is  that  of  Fisk  v.  Henarie,  142  U.  S.  459.  Here  the 
court  decided  that  an  application  for  removal  into  the  United 
States  circuit  court  was  made  too  late.  The  case  had  been 
pending  in  the  state  courts  from  1883  to  1887.  It  had  been 
tried  three  times  in  the  lower  state  courts  with  no  satis- 
factory results.  It  had  been  appealed  to  the  state  supreme 
court  and  remanded  to  the  lower  courts  for  retrial,  after 
which  the  case  was  held  up  and  postponed  so  often  that  it 
was  practically  impossible  to  have  a  final  judicial  determina- 
tion in  the  state  courts. 

The  suit  involved  the  amount  of  $60,000,  and  there  was 
diversity  of  citizenship.  The  question  at  issue  for  the 
Supreme  Court  to  decide  was  whether  the  Judiciary  act  of 
1887,  which  sought  to  reduce  the  number  of  cases  to  be 
heard  by  the  United  States  circuit  court,  so  restricted  the 
field  as  to  make  it  impossible  for  the  federal  court  to  give 
relief.  The  syllabus  of  the  case  gives  the  decree  of  the 
court :  "  Under  the  Act  of  March  3,  1887,  a  cause  may  be 
removed  from  a  state  court  into  the  U.  S.  Circuit  Court 
at  any  time  before  the  trial  thereof,  on  the  ground  of  preju- 
dice or  local  influence;  after  a  cause  has  been  tried  three 
times  in  the  state  court  an  application  for  removal  is  too 
late." 

Justice  Harlan's  contention  was  that  the  setting  of  such  a 
limit  was  contrary  to  what  Congress  meant  by  the  statute 
passed  in  1887.  He  thought  that  further  procedure  might 
be  necessary  before  it  could  be  ascertained  whether  local 
prejudice  would  thwart  the  dealing  out  of  justice.  "The 
fact  of  prejudice  or  local  influence  may  be  established  by 
overwhelming  evidence ;  still  under  the  decision  of  the  court, 
there  can  be  no  removal  if  the  application  for  removal 
be  not  made  before  the  first  trial.  We  do  not  mean  to  say 
that  when  a  trial  is  in  progress  that  the  cause  may  be  re- 
moved before  its  termination,  even  upon  the  ground  of 
prejudice  or  local  influence.  But,  if  at  the  time  the  applica- 
tion is  made  the  cause  is  not  on  trial  and  is  undetermined, 


156     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

that  is,  has  not  been  effectively  tried,  the  Act  of  1887,  in 
our  judgment,  authorizes  a  removal,  on  proper  showing, 
upon  the  ground  of  prejudice  or  local  influence,  although 
there  may  have  been  a  trial,  resulting  in  a  verdict  which  has 
been  set  aside.  .  .  . 

"  Congress  could  hardly  have  intended  to  give  the  de- 
fendant citizen  of  another  State  simply  the  time  between  his 
answering  or  pleading,  and  the  calling  of  his  case  for  the 
first  trial  thereof,  to  determine  whether  he  should  apply  for 
a  removal  upon  the  ground  of  prejudice  or  local  influence. 
In  our  judgment,  it  meant  to  give  the  right  of  removal,  upon 
such  ground,  at  any  time,  when  the  case  is  not  actually  on 
trial,  and  when  there  is  in  force  no  judgment  fixing  the 
rights  of  the  parties  in  the  suit.  If  a  case  is  open  for  trial, 
on  the  merits,  an  application  for  its  removal  before  that 
trial  commences  is  made  '  before  the  trial  thereof.'  In  our 
opinion,  the  interpretation  adopted  by  the  court  defeats  the 
purpose  which  Congress  had  in  view  for  the  protection  of 
persons  sued  elsewhere  than  in  the  State  of  which  they  are 
citizens." 

By  contrasting  the  two  cases  discussed  we  may  deduce 
Justice  Harlan's  doctrine  that  anything  that  has  actually 
been  decided  is  res  judicata,  but  that  which  has  not  been 
decided  is  not  res  judicata.  The  length  of  time  during 
which  it  has  been  pending  is  not  to  be  considered,  as  long 
as  the  case  is  not  actually  on  trial. 

In  the  case  of  Railroad  Co.  v.  Ide,  114  U.  S.  52,  the 
Supreme  Court  decided,  curiously  enough,  that  in  a  suit 
between  a  citizen  or  citizens  of  one  State  and  a  citizen  or 
citizens  of  another  State  diversity  of  citizenship  does  not 
necessarily  exist.  In  order  that  diversity  of  citizenship, 
within  the  meaning  of  the  Constitution,  shall  exist,  all  the 
parties  plaintiff  or  complainant  must  be  of  different  citizen- 
ship from  that  of  all  of  the  defendants.  The  diversity  must 
be  complete.  This  doctrine  Justice  Harlan  opposed.  He 
dissented  in  Railroad  Co.  v.  Ide  without  giving  grounds  for 


JURISDICTION   OF   COURTS  I  5/ 

his  dissent,  but  when  the  question  came  up  again  in  Pirie 
V.  Tvedt,  115  U.  S.  41,  he  broke  his  silence.  This  case 
arose  between  citizens  of  Minnesota  on  the  one  hand  and 
citizens  of  Illinois  and  of  Minnesota  on  the  other.  The 
court  held  that  this  case  was  governed  by  that  of  Railroad 
Co.  V.  Ide,  and  that  the  diversity  of  citizenship  was  not 
such  as  could  be  termed  diversity  in  the  constitutional  sense. 
Justice  Harlan  asserted  that  there  was  diversity  of  citizen- 
ship, and  that  even  if  a  decree  could  not  be  rendered  against 
those  parties  who  were  citizens  of  Minnesota,  it  could  be 
rendered  against  the  citizens  of  Illinois.  "  Had  the  suit 
been  only  against  the  defendants  who  are  citizens  of  Illinois, 
as  it  might  have  been,  the  right  of  the  latter  to  remove  it 
into  the  Circuit  Court  of  the  United  States  would  not  be 
questioned.  But  it  seems,  by  the  present  decision,  that  their 
right  of  removal  has  been  defeated  by  the  act  of  the  plaintiffs 
in  waiting  in  uniting  with  them  as  defendants,  citizens  of 
Minnesota,  against  whom,  as  is  conceded,  it  was  not  neces- 
sary to  introduce  any  evidence  whatever  in  order  to  entitle 
the  plaintiffs  to  a  judgment  against  the  other  defendants. 
As  in  most,  if  not  in  all  States  the  local  statutes  dispense 
with  the  verification  of  the  pleadings  in  action  of  tort, 
this  convenient  device  will  be  often  employed.  When,  for 
instance,  a  citizen  of  New  York  has  a  cause  of  action, 
sounding  in  damages,  against  a  citizen  of  New  Jersey,  who 
happens  to  go  within  the  jurisdiction  of  the  former  State, 
the  plaintiff  can  join  a  citizen  of  New  York  as  a  co-de- 
fendant, charging  them  jointly  with  the  liability  to  him  for 
damages  claimed.  And  when  the  citizen  of  New  Jersey 
asks  a  removal  of  the  suit  to  the  federal  court,  he  is  met 
with  the  suggestion  that  it  is  for  the  plaintiff,  in  his  discre- 
tion to  sue  him  separately,  or  jointly  with  others.  Upon  his 
application  to  remove  the  cause,  the  state  court  may  not 
institute  a  preliminary  inquiry  as  to  whether  the  plaintiff 
had,  in  fact,  a  cause  of  action  against  the  defendant  citizen 
of  New  York.  It  is  not  for  that  court,  in  advance,  to 
determine  the  good  faith  of  the  plaintiff  in  making  a  citizen 


158     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

of  New  York  a  co-defendant  with  the  citizen  of  New 
Jersey.  The  removal  statutes  make  no  provision  for  such 
an  inquiry,  and  the  state  court,  by  the  decision  just  rendered, 
must  look  alone  to  the  course  of  action  as  set  out  in  the 
petition  or  complaint.  When,  in  the  case  supposed,  the 
evidence  is  concluded,  and  it  appears  that  there  is,  in  fact, 
no  cause  of  action  against  the  defendant  citizen  of  New 
York,  it  is  too  late  for  the  removal  to  occur;  for,  it  must 
be  had,  if  at  all,  before  the  suit  could  be  tried  in  the  State 
court." 

Justice  Harlan  opposed  this  differentiation  in  diversity  of 
citizenship,  which  the  court  made,  on  account  of  a  practical 
consideration  as  well  as  because  of  proper  constitutional 
construction.  He  beheved  that  diversity  of  citizenship 
ought  not  to  have  been  so  interpreted  as  to  enable  the  un- 
scrupulous to  play  with  the  law. 

Another  case  in  which  arose  the  very  interesting  question 
as  to  what  constitutes  diversity  of  citizenship  of  corpora- 
tions is  St.  Louis  and  San  Francisco  R.  Co.  v.  James,  i6i 
U.  S.  545.  Here  one  Etta  James  sued  to  recover  damages 
for  the  death  of  her  husband,  who  was  killed  while  a  fire- 
man upon  that  railroad.  She  was  a  citizen  of  Missouri, 
and  the  railroad  company  was  also  a  citizen  of  Missouri, 
being  a  corporation  chartered  by  that  State.  She  con- 
tended that  inasmuch  as  the  company  was  doing  business 
under  the  laws  of  Arkansas  it  was  also  a  citizen  of  that 
State,  and  that  there  was  therefore  diversity  of  citizenship. 
The  court  decided  that  a  corporation  could  not  be  a  citizen 
of  two  States  at  the  same  time,  and  since  it  was  chartered 
in  Missouri,  the  company  was  a  Missouri  citizen,  and  there 
was  therefore  no  diversity  of  citizenship. 

Justice  Harlan  dissented.  According  to  his  doctrine,  a 
corporation  could  under  certain  conditions  be  considered  a 
citizen  of  two  States.  Since  in  this  case  the  railroad  com- 
pany had  agreed  to  submit  to  the  laws  of  Arkansas  for  the 
privilege  of  doing  business  there,  and  since  the  laws  of  that 
State  stipulated  that  every  railroad  company  that  did  busi- 


JURISDICTION    OF   COURTS  1 59 

ness  within  that  State,  whether  chartered  elsewhere  or  not, 
should  become  a  citizen  of  that  State,  this  company  had 
properly  to  be  considered  as  a  citizen  of  Arkansas  as  well 
as  of  Missouri,  and  if  the  Arkansas  corporation  was  sued 
by  a  citizen  of  another  State  there  was  diversity  of  citi- 
zenship. 

"  At  first  blush,"  he  says,  "  it  may  seem  strange  that  the 
plaintiff  did  not  sue  the  Missouri  corporation  in  one  of  the 
courts  of  Missouri.  But  that  cannot  affect  the  jurisdiction 
of  the  court  below,  if  the  defendant  is  an  Arkansas  cor- 
poration. And  her  right  to  a  judgment  cannot  be  denied, 
if  the  Arkansas  corporation  is  liable  for  injuries  caused,  in 
Missouri,  by  the  negligence  of  the  Missouri  corporation. 
It  may  be  that  the  line  in  Missouri  is  covered  by  mortgages 
for  very  large  amounts,  so  that  a  judgment  against  the  Mis- 
souri corporation  would  be  of  no  real  value.  That  perhaps 
is  the  reason  why  the  plaintiff  brought  suit  against  the  Ar- 
kansas corporation.  But,  as  already  said,  this  view  is  not 
at  all  material  on  the  present  hearing." 

Closely  allied  to  the  matter  of  diversity  of  citizenship  is 
the  question  as  to  where  the  suit  may  properly  be  brought. 
This  point  came  out  very  emphatically  in  the  case  of  Macon 
Grocery  Co.  v.  Atlantic  Coast  Line  R.  Co.,  215  U.  S.  501. 
Here  was  involved  an  attempt  on  the  part  of  certain  ship- 
pers of  Georgia  to  prevent  a  conjoint  action  of  several  rail- 
road companies  to  put  into  operation  an  increase  in  freight 
rates.  The  action  was  brought  in  the  United  States  circuit 
court  for  the  southern  district  of  Georgia  on  the  ground  of 
diversity  of  citizenship.  The  court  held  that  such  a  suit 
could  not  be  conducted  in  the  federal  court  for  that  district, 
and  had  to  be  brought  in  the  district  of  one  of  the  corpora- 
tions. This  decision  was  based  upon  the  act  of  Congress 
of  1888,  which,  the  court  asserted,  provided  that  "no  civil 
suit  shall  be  brought  ...  in  any  other  district  than  that 
whereof  he  [the  defendant]  is  an  inhabitant,  but  where 
the  jurisdiction  is  founded  only  on  the  fact  that  the  action 


l6o    CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

is  between  citizens  of  different  states,  suit  shall  be  brought 
only  in  the  district  of  the  residence  of  either  the  plaintiff 
or  the  defendant." 

Justice  Harlan  differed  from  the  court  as  to  its  interpre- 
tation of  the  Act  of  1888,  and  emphasized  the  lack  of  wis- 
dom of  the  decree.  In  referring  to  the  act  he  made  the  fol- 
lowing comment:  "  I  recognize  the  fact  that  the  act  of  1888 
was  not  drawn  with  precision.  But  I  am  of  opinion  that, 
as  the  act  gives  the  circuit  court  original  jurisdiction,  con- 
current with  the  courts  of  the  several  states,  '  of  all  suits  of 
a  civil  nature,  at  common  law  or  in  equity,  where  the  matter 
in  dispute  exceeds,  exclusive  of  interest  and  costs,  the  sum 
or  value  of  $2,000  ...  in  which  there  shall  be  a  controversy 
between  citizens  of  different  states,'  the  intention  of  Con- 
gress would  be  best  effectuated  by  holding  that  the  juris- 
diction of  the  circuit  court  is  not  excluded,  in  a  controversy 
between  citizens  of  different  states,  simply  because  the  plain- 
tiff, who  sued  in  the  Federal  court  held  in  the  state  of  his 
residence,  asserts  a  Federal  right  and  seeks  to  have  it  pro- 
tected against  the  illegal  acts  of  the  defendant,  a  citizen  of 
another  state;  provided,  always,  that  the  defendant,  if  a 
corporation  of  another  state,  may,  through  agents  conduct- 
ing its  business  in  the  state  where  the  suit  is  brought,  be 
reached  by  the  process  of  the  court,  and  subjected  to  its 
authority.  The  presence  in  the  case  of  a  Federal  right  as- 
serted by  the  plaintiff  ought  not  to  prejudice  him,  and  does 
not,  I  think,  alter  the  fact  that  the  controversy  is  one  of 
which  a  circuit  court  may  take  cognizance,  because  it  is  a 
controversy  between  citizens  of  different  states." 

Justice  Harlan  also  differed  from  the  court  on  other 
grounds.  He  contended  that,  to  start  with,  the  complaint 
should  have  been  made  to  the  Interstate  Commerce  Com- 
mission, where  the  question  would  almost  certainly  have 
been  once  for  all  settled.  "This,  I  think,  is  all  that  need 
have  been  said;  for,  whatever  interpretation  was  given  to 
the  judiciary  act  of  1888  .  .  .  the  circuit  court  would  have 
been  required,  under  the  case  just  cited  [B.  &  O.  R.  Co.  v. 


JURISDICTION    OF    COURTS  l6l 

United  States,  215  U.  S.  481],  to  decline  jurisdiction.  But 
the  court,  in  its  wisdom,  does  not  refer  to  this  view  of  the 
case,  and  deems  it  necessary  to  determine  whether  the  plain- 
tiffs, citizens  of  Georgia,  may,  under  the  judiciary  act  of 
1888,  considered  alone,  invoke  the  jurisdiction  of  the  circuit 
court,  held  in  that  state,  against  the  defendant  corporations 
of  other  states.'* 

This  quotation  shows  sufficiently  well  the  grounds  of 
Justice  Harlan's  dissent.  Since  the  Interstate  Commerce 
Commission  had  been  established  for  the  express  purpose 
of  passing  upon  such  a  contention  as  this,  he  saw  no  reason 
why  all  jurisdiction  other  than  that  should  not  have  been 
excluded  and  the  case  remanded  for  determination  there. 
The  court  was  uselessly  contending  for  something  that  was 
not  necessarily  to  be  considered,  and  avoiding  that  which 
made  the  case  very  simple.  Nevertheless,  he  proceeded  to 
reply  to  the  contentions  of  the  court,  and  to  show  that  a 
wiser  interpretation  of  the  act  would  have  been  to  allow  the 
suit  to  be  brought  into  the  federal  court  at  the  home  of  the 
plaintiff  as  well  as  at  that  of  any  of  the  corporations. 

It  may  appear  that  the  cases  just  considered  turn  on  ques- 
tions of  statutory  construction  rather  than  of  constitutional 
right.  They  are,  however,  significant  as  evidencing  the 
strong  desire  on  the  part  of  Justice  Harlan  to  secure  to  the 
individual  when  possible  the  right  of  resort  to  federal  courts. 

The  Meaning  of  Federal  Immunity. — There  are  two  very 
significant  cases  in  which  Justice  Harlan  differed  from  the 
court  in  its  interpretation  of  what  constitutes  an  immunity 
guaranteed  by  the  Federal  Constitution.  They  are  Tullock 
V.  Mulvane,  184  U.  S.  497,  and  Bailey  v.  Alabama,  211  U. 
S.  452.  The  first  involved  the  constitutionality  of  a  decree 
of  a  state  court  which  had  given  to  a  defendant  the  attor- 
ney's fees,  in  addition  to  damages  for  losses  incurred  by  the 
unlawful  imposition  of  an  injunction  issued  by  the  circuit 
court.  The  question  raised  was  whether  there  was  a  fed- 
eral question  involved  such  as  would  give  jurisdiction  to  the 
federal  court.  The  court,  speaking  through  Justice  White, 
said  that  there  was,  but  Justice  Harlan  said  there  was  not. 


1 62     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

The  following  quotation  will  give  in  a  general  way  the 
contention  of  the  court :  "  To  hold  the  contrary,  as  we  have 
previously  pointed  out,  would  be  but  to  declare,  that  al- 
though the  power  conferred  by  Congress  upon  this  court  to 
adopt  equity  rules  in  controlling,  nevertheless  the  interpre- 
tations of  the  rules  and  limitations  which  arise  from  a 
proper  construction  of  them,  as  expounded  by  this  court  and 
enunciated  in  its  decisions,  are  without  avail.  And  this  yet 
further  points  out  the  fallacy  involved  in  the  contention  that 
the  lower  court,  in  passing  upon  the  issues,  decided  merely 
a  question  of  general  law  involving  no  Federal  controversy. 
Now  it  is  at  once  conceded  that  the  decision  by  a  state  court 
of  a  question  of  local  or  general  law  involving  no  Federal 
element  does  not  as  a  matter  of  course  present  a  Federal 
question.  But,  where,  on  the  contrary,  a  Federal  element  is 
specially  averred  and  essentially  involved,  the  duty  of  this 
court  to  apply  to  such  Federal  question  its  own  conceptions 
of  the  general  law  we  think  is  incontrovertible." 

The  decision  of  the  court  amounted  to  this  :  If  there  arose 
a  dispute  involving  the  application  of  law  in  which  a  fed- 
eral right  was  averred,  even  though  there  was  no  constitu- 
tional point  involved,  and  though  there  was  no  federal 
statute  covering  the  case  and  the  matter  controlled  was  one 
of  private  relations  within  the  State,  yet  what  the  federal 
court  had  decided  as  having  had  bearing  on  this  point  should 
be  given  precedence  over  state  law  and  decisions.  As  Justice 
Harlan  showed,  this  was  an  inadmissible  extension  of  fed- 
eral authority. 

He  said :  "  The  claim  is  that  the  rules  and  decisions  of 
the  Supreme  Court  of  the  United  States  have  the  force  of 
legislative  declarations ;  that  they  enter  into,  and  become  a 
part  of,  the  contract  of  sureties,  who  can  only  be  held  liable 
for  such  consequences  as  are  the  direct  result  of  the  breach 
and  were  within  their  contemplation  at  the  time  the  bond 
was  executed.  No  statute,  however,  prescribed  the  condi- 
tions of  the  bond  nor  limited  the  extent  of  liability  thereon. 
It  is  true  that  it  was  within  the  general  equitable  power  of 


JURISDICTION   OF    COURTS  1 63 

the  Federal  court  to  prescribe  the  conditions  upon  which 
the  injunction  should  issue.  .  .  .  Being  an  independent  con- 
tract, actionable  in  any  state  court  where  service  upon  the 
sureties  can  be  obtained,  the  interpretation  of  the  former 
applies.  .  .  .  They  knew  that  the  obligation  was  enforceable 
in  the  courts  of  the  state  of  which  the  plaintiff  and  defend- 
ants were  all  residents,  and  that  the  highest  court  of  that 
state  had  consistently  held  that  counsel  fees  were  recover- 
able on  an  injunction  bond.  That  the  bond  was  given  in  a 
Federal  court,  where  a  different  rule  of  interpretation  ob- 
tains, has  not  been  deemed  to  affect  the  state  court  in  de- 
termining the  liability  upon  such  bonds  when  suit  was 
brought  thereon.  .  .  . 

"  Suppose  this  court  had  not,  prior  to  the  trial  of  this  case, 
expressed  any  opinion  upon  that  question  of  general  law. 
Could  it  then  have  been  contended  that  the  judgment  com- 
plained of  denied  any  Federal  immunity?  If  not,  then  the 
Federal  immunity  now  claimed  arises  entirely  from  the  fail- 
ure of  the  state  court  to  take  the  same  view  of  a  question  of 
general  law  which  this  court  took  in  prior  cases  between 
other  parties.  There  has  been  a  wide  difference  of  opinion 
between  this  court  and  some  of  the  state  courts  upon  ques- 
tions of  general  law.  But  it  has  never  been  supposed  that 
anyone  has  such  a  vested  interest  in  the  views  of  this  court 
upon  questions  of  general  law  that  he  may  complain  of  the 
refusal  of  a  state  court  to  accept  those  views  as  denying 
him  an  '  immunity '  existing  or  belonging  to  him  in  virtue 
of  an  '  authority  exercised  under  the  United  States.' " 

From  a  study  of  this  decision  it  is  very  difficult  to  ascer- 
tain exactly  what  federal  immunity  the  judge  was  defend- 
ing. He  was  very  positive  in  asserting  that  on  the  very  face 
of  the  case  a  federal  immunity  was  involved,  but  he  was  ob- 
scure in  indicating  exactly  what  that  immunity  was.  The 
more  clearly,  however,  the  matter  in  dispute  is  brought  into 
the  foreground,  the  more  certain  it  is  that  there  was  in 
fact  no  federal  immunity.  Justice  Harlan  showed  that 
there  had  been  many  cases  decided  to  the  contrary,  and 


164    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

that  even  the  decisions  cited  by  the  court  do  not,  if  prop- 
erly interpreted,  give  precedent  for  the  present  decree. 

This  case  illustrates  how  far  at  times  the  court  will  go  in 
order  to  discover  a  federal  question.  The  next  case  for 
discussion  shows  how  hard  it  is,  at  other  times,  for  the 
court  to  see  a  federal  question  when  it  would  seem  to  be 
very  evident.  Justice  Harlan,  of  course,  dissented  from 
the  latter  also, — Bailey  v.  Alabama,  211  U.  S.  452.  The 
case  came  from  the  supreme  court  of  Alabama,  to  review  a 
decision  denying  relief  by  habeas  corpus.  The  decision  was 
rendered  by  Justice  Holmes,  and  may  be  summarized  as 
follows :  The  plaintiff  in  error  was  committed  for  detention 
on  a  charge  of  having  obtained  fifteen  dollars  with  the  in- 
tent to  defraud  his  employer.  The  contention  was  that  a 
colored  man  had  by  a  statute  of  Alabama  been  deprived  of 
his  liberty  without  due  process  of  law,  and  had  been  sub- 
jected to  involuntary  servitude. 

The  nature  of  the  statute  in  question  was  this :  If  any 
one  borrowed  money  in  advance  on  a  written  contract  for 
labor,  a  fine  of  double  the  amount  borrowed  was  to  be  im- 
posed upon  the  borrower  if  he  refused  to  perform  the  work 
which  he  had  agreed  to  perform.  Half  of  the  amount  of 
the  fine  went  to  the  State,  and  the  other  half  went  to  the 
employer  as  a  repayment  of  the  amount  lost.  The  follow- 
ing was  the  contested  stipulation  in  the  statute :  "  And  the 
refusal  of  any  person  who  enters  into  such  contract  to  per- 
form such  act  or  service  or  to  cultivate  such  lands,  or  re- 
fund such  money,  or  pay  for  such  property,  without  just 
cause,  shall  be  prima  facie  evidence  of  the  intent  to  injure 
his  employer  or  landlord,  or  to  defraud  him." 

The  plea  was  set  up  that  this  statute  made  it  possible,  by 
the  advancing  of  small  amounts  of  money  to  persons  in 
need,  to  prevent  such  persons  from  making  free  labor  con- 
tracts. The  fact  that  the  non-performance  of  the  work  con- 
tracted for  was  to  be  taken  on  prima  facie  evidence  of  his 
intent  to  defraud  made  it  impossible  for  the  person,  by 
working  elsewhere,  to  pay  the  debt.  Hence  the  plea  was 
made  that  this  was  involuntary  servitude. 


JURISDICTION   OF   COURTS  1 65 

The  case  was  thrown  out  of  court  because  of  the  way  in 
which  the  plaintiff  proceeded.  The  ruling  was  that  because 
the  plaintiff  had  sued  out  a  writ  of  habeas  corpus  for  dis- 
charge in  advance  of  his  trial  in  the  lower  state  court,  he 
had  not  taken  the  proper  procedure  to  have  his  case  deter- 
mined by  the  Supreme  Court.  This  was  termed  a  "short 
cut "  by  the  court,  and  because  of  this  short  cut  the  question 
asked  could  not  be  answered. 

Such  a  grave  injustice  aroused  Mr.  Harlan.  He  recog- 
nized, however,  that  if  this  procedure  had  taken  place  in  a 
lower  federal  court  and  the  case  had  been  appealed,  the 
writ  of  habeas  corpus  would  have  been  denied.  But  since 
this  was  a  procedure  in  the  state  courts  from  the  first,  and 
since  the  supreme  court  of  the  State  had  overlooked  this  flaw 
in  procedure,  that  fact  once  and  for  all  settled  the  point  of 
procedure  in  the  lower  state  court.  All  that  the  Supreme 
Court  was  to  decide,  and  had  a  right  to  decide,  was  the  con- 
stitutionality of  the  statute.  In  other  words.  Justice  Harlan 
contended  that  the  Supreme  Court  exceeded  its  jurisdiction 
in  passing  upon  the  procedure  in  state  courts,  particularly 
when  the  supreme  court  of  the  State  from  which  the  case 
came  had  not  questioned  it. 

"If  the  accused,"  he  said,  "in  advance  of  his  trial,  had 
sought  a  discharge  on  a  writ  of  habeas  corpus  sued  out  from 
a  circuit  court  of  the  United  States,  that  might  have  been 
deemed  a  '  short  cut.'  For  it  is  well  established  that,  '  in 
the  light  of  the  relations  existing  under  our  system  of  gov- 
ernment between  the  judicial  tribunals  of  the  Union  and 
of  the  states,  and  in  recognition  of  the  fact  that  the  public 
good  requires  that  those  relations  be  not  disturbed  by  un- 
necessary conflict  between  courts  equally  bound  to  guard 
and  protect  rights  secured  by  the  Constitution,'  the  courts 
of  the  United  States  will  not,  except  in  certain  cases  of 
urgency,  and  in  advance  of  his  trial,  discharge,  upon  habeas 
corpus,  one  who  is  alleged  to  be  held  in  custody  by  the  state, 
in  violation  of  the  Constitution  or  the  laws  of  the  United 
States.  ,  .  .  But  whether  the  accused,  in  seeking  his  dis- 


1 66     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

charge  by  the  state  court,  adopted  a  mode  of  procedure 
authorized  by  the  local  law,  was  for  the  Alabama  courts, 
not  for  this  court,  to  determine.  The  state  court  recog- 
nized the  proceeding  by  habeas  corpus  to  be  in  accordance 
with  the  local  law ;  for  the  supreme  court  of  Alabama,  with- 
out even  intimating  that  the  accused  took  a  *  short  cut,'  or 
pursued  the  wrong  method  to  obtain  his  discharge,  enter- 
tained his  appeal  and  passed  upon  the  constitutionaHty  of 
the  statute  under  which  he  was  held  in  custody." 

Without  going  further  into  this  subject,  it  is  readily  seen, 
from  these  two  cases,  if  the  court  wishes  to  see  a  federal 
question,  how  little  excuse  is  necessary  to  find  one,  but  if 
the  court  wishes  to  find  otherwise,  how  much  it  takes  to 
make  the  court  pass  upon  the  constitutionality  of  a  question. 
With  Justice  Harlan  it  was  not  so.  With  him,  if  there  was 
a  federal  question  to  be  decided,  it  was  the  court's  duty  to 
pass  upon  it.  If,  on  the  other  hand,  there  was  none,  he  did 
not  think  it  the  duty  of  the  court  to   manufacture  one. 

Equity  Competence. — The  case  of  Thompson  v.  Allen 
County,  115  U.  S.  550,  is  an  interesting  illustration  of  Jus- 
tice Harlan's  desire  to  have  the  United  States  circuit  court 
enforce  its  decree.  Here  was  involved  the  issue  by  a  county, 
in  due  legal  form,  of  bonds  as  subscription  to  stock  in  a  rail- 
road company.  The  county  court  had  been  empowered  by 
the  State  to  appoint  a  tax  collector  to  collect  the  tax  levy  to 
meet  the  interest  on  the  coupons  as  it  came  due.  The  whole 
county  was  opposed  to  this  tax  levy,  and  practically  every- 
body refused  to  pay.  No  one  could  be  found  by  the  county 
court  who  would  undertake  the  duty  of  collecting  taxes  to 
meet  the  obligations  which  the  county  clearly  owed.  The 
circuit  court  issued  a  mandamus  directed  to  the  county  court 
to  have  the  taxes  collected  to  meet  the  debt  of  the  county. 
When  the  reply  came  that  no  one  could  be  found  to  collect 
the  taxes,  suit  was  instituted  to  force  the  tax  payers  indi- 
vidually to  pay  the  taxes  in  court  for  the  purpose  of  meet- 
ing the  interest  due  on  the  bonds.  The  circuit  court  held 
that  the  collection  of  taxes  was  not  a  judicial  function,  and 


JURISDICTION    OF   COURTS  1 6/ 

Upon  this  point  the  case  was  sustained  by  the  Supreme 
Court. 

The  language  of  the  court  on  this  point  is  as  follows: 
"  No  such  power  has  ever  yet  been  exercised  by  a  court  of 
chancery.  The  appointment  of  its  officer  to  collect  taxes 
levied  by  order  of  a  common-law  court  is  as  much  without 
authority  as  to  appoint  the  same  officer  to  levy  and  collect 
the  tax.  They  are  parts  of  the  same  proceeding,  and  relate 
to  the  same  matter.  If  the  common-law  court  can  compel 
the  assessment  of  a  tax,  it  is  quite  as  competent  to  enforce 
its  collection  as  a  court  of  chancery.  Having  jurisdiction 
to  compel  the  assessment,  there  is  no  reason  why  it  should 
stop  short,  if  any  further  judicial  power  exists  under  the 
law,  and  turn  the  case  over  to  a  court  of  equity.  The 
sheriff  or  marshal  is  as  well  qualified  to  collect  the  tax  as  a 
receiver  appointed  by  the  court  of  chancery." 

Justice  Harlan  differed  from  the  court  both  as  to  the  col- 
lection of  this  tax  being  an  assumption  by  the  court  of  an 
executive  function,  and  as  to  the  ability  of  the  circuit  court 
to  put  into  effect  its  mandamus  by  collecting  the  tax  itself. 

After  citing  several  cases  to  show  that  such  had  not  be- 
fore been  necessarily  deemed  an  assumption  of  an  inappro- 
priate function,  he  said :  "  The  bill  does  not  ask  the  court  to 
usurp  the  function  of  levying  the  taxes.  That  duty  has  been 
performed  by  the  only  tribunal  authorized  to  do  it,  viz. : 
the  County  Court  of  Allen  County.  Nothing  remains  to 
be  done,  except  to  collect  from  individuals  specific  sums  of 
money  which  they  are  under  legal  obligations  to  pay.  The 
collection  of  these  sums  will  not  interfere  with  any  discre- 
tion with  which  the  Allen  County  Court  is  invested  by  law ; 
for,  by  its  own  order,  made  in  conformity  with  the  law  of 
the  State,  and  by  judgment  in  the  mandamus  proceedings, 
the  sums  due  from  the  individual  defendants,  and  from 
other  taxpayers,  have  been  set  apart  for  the  payment  of 
Thompson's  judgments.  Those  sums,  when  thus  collected 
cannot  be  otherwise  used.  As  the  county  court  cannot  find 
any  one  who  will  accept  the  office  of  special  collector,  and 


1 68    CONSTITUTIONAL   DOCTRINES   OF   JUSTICE    HARLAN 

as  the  parties  agree  that  there  is  no  mode  of  collecting  the 
sums  set  apart  in  the  hands  of  the  individual  defendants 
and  other  tax  payers,  for  the  payment  of  Thompson,  I  am 
unable  to  perceive  why  the  circuit  court  sitting  in  equity, 
may  not  cause  these  sums  to  be  applied  in  satisfaction  of  its 
judgments  at  law.  .  .  .  With  money  in  their  hands,  equit- 
ably belonging  to  the  judgment  creditor,  they  walk  out  of 
the  court  whose  judgments  remain  unsatisfied,  announcing 
in  effect,  that  they  will  hold  negotiations  only  with  a  '  special 
collector'  who  has  no  existence. 

"  That  the  court  below,  sitting  in  equity — after  it  has 
given  a  judgment  at  law  for  money,  and  after  a  return  of 
nulla  bona  against  the  debtor — may  not  lay  hold  of  moneys, 
set  apart,  by  the  act  of  the  debtor,  in  the  hands  of  individuals 
exclusively  for  the  payment  of  that  judgment,  and  which 
money,  the  parties  agree,  cannot  be  otherwise  reached  than 
by  being  brought  into  that  court  under  its  orders,  is  a  con- 
fession of  helplessness  on  the  part  of  the  courts  of  the 
CJnited  States  that  I  am  unwilling  to  make." 

Amount  in  Dispute. — ^The  question  of  the  amount  in  dis- 
pute necessary  for  the  Supreme  Court  to  review  decisions 
below  has  given  rise  to  some  very  interesting  discussions. 
The  disputes,  however,  have  not  centered  so  much  around 
the  amount  itself  as  around  the  constitutional  points  in- 
volved. Two  cases  illustrate  this  assertion,  Linford  v. 
Ellison,  155  U.  S.  503,  and  Giles  v.  Harris,  189  U.  S.  475. 

The  case  of  Linford  v.  Ellison  involved  the  validity  of 
an  ordinance  of  the  city  of  Kaysville,  Utah.  This  ordi- 
nance levied  a  tax  on  land  which,  though  incorporated 
within  the  city,  was  so  far  from  the  settled  portions  as  not 
to  be  benefited  by  incorporation.  A  person  having  refused 
to  pay  the  assessment  made  upon  him,  the  tax  collector 
levied  and  sold  a  wagon,  to  obtain  the  amount  of  fifty  dol- 
lars to  satisfy  the  assessment.  The  contention  was  made 
that  inasmuch  as  the  tax  was  levied  upon  one  who  received 
no  benefit  from  the  city,  such  a  tax  took  property  without 
due  process  of  law. 


JURISDICTION   OF   COURTS  1 69 

The  Supreme  Court  decided,  among  other  things,  that 
since  the  city  had  acted  within  authority  granted  by  Con- 
gress in  estabhshment  of  the  territory  of  Utah,  and  since 
the  constitutionality  of  no  statute  of  Congress  was  involved, 
and  since  the  damages  did  not  amount  to  $5000,  the  de- 
cision of  the  territorial  court  would  stand.  The  language 
of  the  court  on  this  point  is  as  follows :  "  It  is  thus  seen 
that  the  decision  of  the  supreme  court  of  the  territory  in- 
volved the  construction  of  the  organic  law  and  the  scope 
of  the  authority  to  legislate  conferred  upon  the  territorial 
legislature;  but  that  the  validity  of  that  authority  and  of 
the  statute  was  not  drawn  in  question.  In  order  to  give 
us  jurisdiction  of  this  appeal,  the  matter  in  dispute  exclu- 
sive of  costs  must  have  exceeded  the  sum  of  $5,000,  or  else, 
without  regard  to  the  sum  or  value  in  dispute,  the  validity 
of  a  patent  or  copyright  must  have  been  involved,  or  the 
validity  of  a  treaty  or  statute  of  or  an  authority  exercised 
under  the  United  States  have  been  drawn  in  question." 

Justice  Harlan  thought  that  the  question  should  have 
been  answered  regardless  of  the  amount  in  dispute.  The 
question  had  been  asked  whether  property  had  been  taken 
without  due  process  of  law,  and  it  was  for  the  court  to 
answer  it.  "We  have  jurisdiction  to  review  the  judgment 
or  decree  of  the  supreme  court  of  a  territory,  without  re- 
gard to  the  sum  or  value  in  dispute  in  any  case  in  which  is 
*  drawn  in  question  the  validity  of  ...  an  authority  exer- 
cised under  the  United  States.'"  Since  "the  validity  of 
the  authority  given  by  the  territorial  legislature,  acting 
under  the  United  States,  to  tax  agricultural  lands  like  those 
belonging  to  the  plaintiff,  was  directly  drawn  in  question 
and  was  passed  upon  by  the  court  of  original  jurisdiction," 
the  question  should  have  been  answered. 

In  concluding,  he  said :  "  It  seems  to  me  that  if  a  case  in 
a  territorial  court  turns  upon  the  validity  of  an  act  which 
is  authorized  by  a  statute  of  the  territorial  legislature  de- 
riving its  existence  and  powers  from  the  United  States,  and 
if  that  statute  is  itself  drawn  in  question  as  being  repug- 


I/O     CONSTITUTIONAL  DOCTRINES   OF   JUSTICE    HARLAN 

nant  to  the  Constitution  of  the  United  States,  then  we  have 
a  case  in  which  is  '  drawn  in  question  the  validity  of  .  .  . 
an  authority  exercised  under  the  United  States.' " 

It  may  appear  that  this  case  involves  primarily  the  con- 
struction of  a  statute,  but  underneath  can  be  seen  Justice 
Harlan's  desire  that  the  court  shall  determine  the  point  of 
due  process  of  law,  and  the  desire  to  extend  the  jurisdiction 
of  the  Supreme  Court  as  far  as  possible  to  acts  of  subordi- 
nate authorities  in  territories. 

It  has  been  seen  how,  in  Bailey  v.  Alabama,  Justice 
Holmes,  by  calling  the  procedure  undergone  by  the  plaintiff 
a  short  cut,  denied  to  the  colored  man  rights  supposed  to  be 
secured  to  him  under  the  Constitution  of  the  United  States. 
In  Giles  v.  Harris  occurs  a  similar  situation.  In  this  case, 
however,  the  court  assumed  jurisdiction  and  considered  the 
merits  of  the  case,  but  did  not  pass  upon  the  constitutional 
point  involved. 

The  case  involved  the  provisions  in  the  constitution  of 
Alabama  which  had  been  so  applied  as  to  deny  to  the 
negroes  the  right  to  vote.  The  case  was  brought  into  the 
circuit  court  of  the  United  States,  and  was  dismissed  for 
want  of  jurisdiction.  Hence  an  appeal  was  taken  to  the 
Supreme  Court.  The  dismissal  from  the  circuit  court  was 
on  the  ground  that  damages  were  averred  to  be  not  two 
thousand  dollars. 

The  Supreme  Court  admitted  that  the  circuit  court  did 
not  have  jurisdiction  as  the  record  read,  but  rather  than 
remand  for  a  revision  of  the  record,  the  court  waived  the 
pecuniary  considerations  and  proceeded  to  decide  the  merits 
of  the  case.  It  decided  that  equity  could  not  give  relief, 
for  the  plaintiffs  would  have  been  forced  by  the  court  to 
be  registered  under  a  statute  which  they  themselves  said 
was  unconstitutional.  In  the  second  place,  it  said  that  if 
the  whole  of  the  white  population  of  Alabama  desired  to 
deprive  the  colored  men  of  their  votes,  a  decision  to  the 
contrary  would  not  remedy  the  situation.  But  the  court 
did  not  answer  the  question  of  the  constitutionality  of  the 


JURISDICTION   OF   COURTS  1 71 

provisions  of  the  Alabama  constitution,  one  of  the  express 
averments  of  the  case. 

Justice  Harlan  differed  from  the  court  because  it  dis- 
cussed the  merits  of  the  case  at  all.  He  held  that  since  the 
case  was  not  properly  before  the  circuit  court  in  that  the 
record  did  not  show  the  averment  of  damages  amounting 
to  two  thousand  dollars,  the  question  of  damages  could  not 
rightly  be  waived  by  the  Supreme  Court  and  the  case  de- 
cided upon  its  merits.  In  that  connection  he  said :  "  It 
seems  to  me  that  this  question  as  to  the  value  of  the  matter 
in  dispute  was  sufficiently  raised  in  the  circuit  court;  for 
the  demurrer  to  the  bill  was,  in  part,  on  the  ground  that  the 
facts  stated  did  not  make  a  case  *  within  the  jurisdiction  of 
the  court.'  But,  passing  that  view,  I  come  to  a  more  serious 
matter.  In  cases  of  which  a  circuit  court  may  take  original 
cognizance,  the  value  of  the  matter  in  dispute — which  is 
mentioned  in  the  statute  in  advance  of  any  reference  to  the 
nature  of  the  subject  of  the  action — is  as  essential  to  juris- 
diction as  is  the  nature  of  the  subject  of  such  dispute.  And 
yet  the  court  says  that  an  objection  that  the  record  from  the 
circuit  court  does  not  show  an  allegation  as  to  value  is  un- 
availing here,  even  if  such  allegation  ought  to  have  been 
made.  That  is  a  new,  and  I  take  leave  to  say,  a  startling 
doctrine.  Must  not  this  court,  upon  its  own  motion,  decline 
to  pass  upon — indeed  has  this  court,  strictly  speaking,  juris- 
diction to  consider  and  determine — ^the  merits  of  a  case 
coming  from  the  circuit  court,  unless  it  affirmatively  appears 
from  the  record  that  the  case  is  one  of  which  that  court 
could  take  cognizance?  Is  not  a  suit  presumably  without 
the  jurisdiction  of  a  circuit  court,  unless  the  record  shows 
it  to  be  one  of  which  that  court  may  take  cognizance?  Is 
it  of  any  consequence  that  the  parties  did  not  raise  the  ques- 
tion in  the  circuit  court?  If  the  record  shows  nothing 
more  than  that  the  case  arises  under  the  Constitution  and 
laws  of  the  United  States,  and  if  it  does  not  affirmatively 
appear  in  some  appropriate  way,  that  the  value  of  the  mat- 
ter in  dispute  is  up  to  the  required  amount,  has  this  court 


172    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

jurisdiction  to  consider  and  determine  the  merits  of  the 
case  ?  " 

In  concluding  he  said :  "  My  views  may  be  summed  up  as 
follows:  I.  This  case  is  embraced  by  that  clause  of  the  act 
of  1887-88  which  provides  that  the  circuit  court  shall  have 
original  cognizance  *  of  all  suits  of  a  civil  nature  .  .  .  where 
the  matter  in  dispute  exceeds,  exclusive  of  interest  and  costs, 
the  sum  of  $2,000,  and  arising  under  the  constitution  or 
laws  of  the  United  States.'  2.  That  the  sum  or  value  of  the 
matter  in  dispute  in  such  cases  is  jurisdictional  under  the 
statute.  3.  That,  as  it  did  not  appear  from  the  record,  in 
any  way,  that  the  matter  in  dispute  exceeded  in  value  the 
jurisdictional  amount,  the  circuit  court  could  not  take  cog- 
nizance or  dispose  of  it  on  its  merits.  4.  That  least  of  all 
does  this  court  have  jurisdiction  to  determine  the  merits  of 
this  case.  5.  That  when  a  case  comes  here  upon  a  certifi- 
cate as  to  the  jurisdiction  of  a  circuit  court,  this  court  may 
not  forbear  to  decide  that  question,  and  determine  the 
merits  of  the  case  upon  a  record  which  does  not  show 
jurisdiction  in  the  circuit  court."  He  added,  however, 
"  that  it  is  competent  for  the  court  to  give  rehef  in  such 
cases  as  this." 

There  is  one  characteristic  in  all  of  Justice  Harlan's  dis- 
sents on  the  ground  of  the  jurisdiction  of  courts,  namely, 
the  desire  to  see  justice  done  to  the  individual.  If  a  person 
had  been  wronged  in  one  court,  and  there  was  constitu- 
tional reason  for  having  the  case  taken  into  another  court 
and  there  dealing  out  justice  to  the  individual,  he  was  un- 
willing that  the  letter  of  the  law  should  stand  in  the  way. 
These  cases  well  refute  the  accusation  that  has  often  been 
made  against  him  that  he  stood  for  the  letter  rather  than 
the  spirit  of  the  law. 


CHAPTER  VII 

Miscellaneous  Topics 

Bearing  of  the  Fourteenth  Amendment  upon  the  First 
Eight  Amendments. — Justice  Harlan  held,  with  regard  to 
the  fourteenth  amendment,  a  doctrine  which  few  seem  to 
have  supported.  According  to  him,  the  provisions  of  the 
fourteenth  amendment  made  the  first  eight  amendments 
limitations  upon  the  States  as  well  as  upon  the  United 
States.  Since  by  the  fourteenth  amendment  no  State  could 
abridge  the  privileges  and  immunities  of  citizens  of  the 
United  States,  no  State  could  deny  anything  guaranteed  in 
the  first  eight.  These  provisions  had  previously  been  con- 
sidered privileges  and  immunities  as  opposed  to  the  power 
of  the  national  government.  Since,  therefore,  the  four- 
teenth amendment  forbade  the  abridgment  by  the  States  of 
the  privileges  and  immunities  of  citizens  of  the  United 
States,  it  forbade  the  abridgment  by  them  of  those  secured 
to  the  citizens  by  the  first  eight  amendments. 

In  O'Neil  v.  State  of  Vermont,  144  U.  S.  323,  Justice 
Harlan,  dissenting,  expressed  the  following  sentiment :  "  I 
fully  concur  with  Mr.  Justice  Field,  that  since  the  adoption 
of  the  14th  Amendment,  no  one  of  the  fundamental  rights 
of  life,  liberty,  or  property,  recognized  and  guaranteed  by 
the  Constitution  of  the  United  States,  can  be  denied  or 
abridged  by  a  State  in  respect  to  any  person  within  its  juris- 
diction. These  rights  are,  principally,  enumerated  in  the 
earlier  amendments  of  the  Constitution.  They  were  deemed 
so  vital  to  the  safety  and  security  of  the  people,  that  the 
absence  from  the  Constitution,  adopted  by  the  convention 
of  1787,  of  express  guarantees  of  them,  came  very  near  de- 
feating the  acceptance  of  that  instrument  by  the  requisite 
number  of  states.  The  Constitution  was  ratified  in  the  be- 
12  173 


174    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

lief,  and  only  because  of  the  belief,  encouraged  by  its  lead- 
ing advocates,  that,  immediately  upon  the  organization  of  the 
Government  of  the  Union,  articles  of  amendment  would  be 
submitted  to  the  people,  recognizing  those  essential  rights 
of  life,  liberty,  and  property,  which  inhered  in  Anglo-Saxon 
freedom,  and  which  our  ancestors  brought  with  them  from 
the  mother  country." 

In  Maxwell  v.  Dow,  176  U.  S.  581,  Justice  Harlan  spoke 
even  more  vehemently  for  this  principle.  A  man  had  been 
tried,  convicted  of  robbery,  and  sentenced  to  eighteen  years' 
imprisonment,  by  a  jury  of  eight  persons.  The  case  was 
taken  by  writ  of  error  from  the  supreme  court  of  the  State 
of  Utah  on  the  plea  that  the  section  of  the  constitution  of 
that  State  which  allowed  trial  by  jury  of  less  than  twelve, 
was  unconstitutional  in  that  it  deprived  citizens  of  the 
United  States  of  privileges  and  immunities  secured  to  them 
by  the  Constitution  of  the  United  States. 

The  court,  speaking  through  Justice  Peckham,  denied  this 
claim.  The  main  precedent  cited  was  that  established  in 
the  Slaughter  House  Cases,  16  Wall.  36,  where  it  was  de- 
veloped "that  there  was  a  citizenship  of  the  United  States 
and  a  citizenship  of  the  states,  which  were  distinct  from 
each  other,  depending  upon  different  characteristics  and  cir- 
cumstances in  the  individual;  that  it  was  only  privileges 
and  immunities  of  citizens  of  the  United  States  that  were 
placed  by  the  amendment  under  the  protection  of  the  Fed- 
eral Constitution,  and  that  the  privileges  and  immunities  of 
a  citizen  of  a  state,  whatever  they  might  be,  were  not  in- 
tended to  have  any  additional  protection  by  the  paragraph 
in  question,  but  they  must  rest  for  their  security  and  pro- 
tection where  they  have  heretofore  rested." 

Justice  Harlan,  however,  dissenting,  said :  "  It  does  not 
solve  the  question  before  us  to  say  that  the  first  ten  Amend- 
ments had  a  reference  only  to  the  powers  of  the  national 
government,  and  not  to  the  powers  of  the  states.  For,  if, 
prior  to  the  adoption  of  the  Fourteenth  Amendment,  it  was 
one  of  the  privileges  or  immunities  of  citizens  of  the  United 


MISCELLANEOUS   TOPICS  1/5 

States  that  they  should  not  be  tried  for  crime  in  any  court 
organized  or  existing  under  national  authority  except  by  a 
jury  composed  of  twelve  persons,  how  can  it  be  that  a  citi- 
zen of  the  United  States  may  be  now  tried  in  a  state  court 
for  crime,  particularly  for  an  infamous  crime,  by  eight 
jurors,  when  the  Amendment  expressly  declares  that  'no 
state  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States'?  .  .  . 

"If  the  court  had  not  ruled  otherwise,  I  should  have 
thought  it  indisputable  that  when  by  the  Fourteenth  Amend- 
ment it  was  declared  that  no  state  should  make  or  enforce 
any  law  abridging  the  privileges  or  immunities  of  citizens 
of  the  United  States,  nor  deprive  any  person  of  life,  lib- 
erty, or  property  without  due  process  of  law,  the  People  of 
the  United  States  put  upon  the  states  the  same  restrictions 
that  had  been  imposed  upon  the  national  government  in 
respect,  as  well  of  the  privileges,  and  immunities  of  citizens 
of  the  United  States,  as  of  the  protection  of  the  fundamental 
rights  of  life,  liberty,  and  property. 

"  The  decision  to-day  rendered  is  very  far-reaching  in  its 
consequences.  I  take  it  no  one  doubts  that  the  great  men 
who  laid  the  foundations  of  our  government  regarded  the 
preservation  of  the  privileges  and  immunities  specified  in 
the  first  ten  Amendments  as  vital  to  the  personal  security 
of  American  citizens.  To  say  of  any  people  that  they  do 
not  enjoy  those  privileges  and  immunities  is  to  say  that  they 
do  not  enjoy  real  freedom.  .  .  . 

"  But,  if  I  do  not  wholly  misapprehend  the  scope  and 
legal  effect  of  the  present  decision,  the  Constitution  of  the 
United  States  does  not  stand  in  the  way  of  any  state  strik- 
ing down  guaranties  of  life  and  liberty  that  English-speak- 
ing people  have  for  centuries  regarded  as  vital  to  personal 
security,  and  which  the  men  of  the  revolutionary  period 
universally  claimed  as  the  birthright  of  freemen." 

It  is  seen  from  the  above  that  Justice  Harlan's  doctrine 
rested  on  a  basis  deeper  than  mere  logic.     The  principles 


176    CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

stated  in  the  first  ten  amendments  were  to  him  sacred  ele- 
ments of  liberty,  and  he  naturally  opposed  any  decision  that 
gave  to  the  States  a  constitutional  right  to  abridge  those 
principles.  He  was  not  willing  that  the  States  individu- 
ally should  be  left  to  determine  whether  their  citizens  had 
been  deprived  of  any  of  the  fundamental  rights  of  freedom. 

In  Patterson  v.  Colorado,  ex  rel.  Atty.  Gen.,  205  U.  S. 
454,  Justice  Harlan  again  asserted  this  doctrine  in  the  fol- 
lowing words :  "  I  go  further  and  hold  that  the  privilege  of 
free  speech  and  of  a  free  press,  belonging  to  every  citizen 
of  the  United  States,  constitute  essential  parts  of  every 
man's  liberty,  and  are  protected  against  violation  by  that 
clause  of  the  14th  Amendment  forbidding  a  state  to  de- 
prive any  person  of  his  liberty  without  due  process  of  law. 
It  is,  I  think,  impossible  to  conceive  of  liberty,  as  secured 
by  the  Constitution  against  hostile  action,  whether  by  the 
nation  or  by  the  states,  which  does  not  embrace  the  right 
to  enjoy  free  speech  and  the  right  to  have  a  free  press." 

In  Twining  v.  New  Jersey,  211  U.  S.  78,  as  late  as  the 
year  1908,  Justice  Harlan  asserted  the  same  doctrine :  "  At 
the  close  of  the  late  Civil  War,  which  had  seriously  dis- 
turbed the  foundations  of  our  governmental  system,  the 
question  arose  whether  provision  should  not  be  made  by 
constitutional  Amendments  to  secure  against  attack  by  the 
states^  the  rights,  privileges,  and  immunities  which,  by  the 
original  Amendments,  had  been  placed  beyond  the  power 
of  the  United  States  or  any  Federal  agency  to  impair  or 
destroy.  Those  rights,  privileges,  and  immunities  had  not 
then,  in  terms,  been  guarded  by  the  national  Constitution 
against  impairment  or  destruction  by  the  states,  although, 
before  the  adoption  of  the  14th  Amendment,  every  state, 
without,  perhaps,  an  exception,  had,  in  some  form,  recog- 
nized, as  part  of  its  fundamental  law,  most,  if  not  all,  the 
rights  and  immunities  mentioned  in  the  original  Amend- 
ments, among  them  immunity  from  self-incrimination." 

Direct  Taxation. — It  will  be  interesting  from  the  stand- 
point of  history  to  make  a  short  study  of  Justice  Harlan's 


MISCELLANEOUS   TOPICS  IJ'J 

dissent  in  the  case  of  Pollock  v.  Farmers'  Loan  and  Trust 
Co.,  157  U.  S.  429,  158  U.  S.  601,  wherein  he  differed  from 
the  court  as  to  the  meaning  of  direct  taxation.  As  is  well 
known,  the  court  has  not  been  uniform  in  its  decisions  as 
to  what  constitutes  direct  taxation.  At  first  it  was  thought 
that  only  capitation  taxes  and  taxes  on  real  estate  were  di- 
rect taxes,  but  in  the  case  under  consideration  it  was  de- 
clared that  taxes  on  income  from  real  estate  and  from 
personal  property  are  direct  taxes. 

As  the  case  was  tried  when,  owing  to  the  sickness  of  one 
of  the  justices,  there  were  only  eight  sitting,  and  as  the 
judges  were  equally  divided  on  various  aspects  of  the  case, 
a  rehearing  was  granted.  At  the  first  hearing  the  court 
ruled  that  the  law  in  question,  so  far  as  it  levied  a  tax  on 
the  rents  or  income  of  real  estate,  was  in  violation  of  the 
Constitution  and  invalid.  But  the  j  udges  were  divided  equally 
on  the  following  points:  "  i.  Whether  the  void  provision 
[as  to  rents  and  income  from  real  estate]  invahdates  the 
whole  act?  2.  Whether  as  to  the  income  from  personal 
property  as  such,  the  act  is  unconstitutional,  as  laying  di- 
rect taxes?  3.  Whether  any  part  of  the  tax,  if  not  con- 
sidered as  a  direct  tax,  is  invalid  for  want  of  uniformity 
on  either  of  the  grounds  suggested  ?  "  Upon  the  rehearing 
the  case  was  decided  affirmatively  on  each  of  the  above 
points.  Justice  Harlan  dissented  from  the  whole  decision 
of  the  court.  His  full  doctrine  was  brought  out  in  his  dis- 
sent in  the  final  hearing  of  the  case. 

His  first  condemnation  of  the  decision  was  based  upon 
the  court's  disloyalty  to  the  doctrine  of  stare  decisis.  After 
recalling  that  there  had  been  much  difference  of  opinion  in 
the  constitutional  convention  as  to  exactly  what  constituted 
a  direct  tax,  he  showed  that  it  had  been  decided  in  Hylton  v. 
United  States,  3  Dall.  171,  that  nothing  except  taxes  upon 
real  estate  and  capitation  taxes  constitutes  direct  taxes,  and 
therefore  that  in  asserting  that  taxation  upon  income  from 
real  estate  or  personal  property  was  direct  taxation  the 
court  departed   from  the  accepted  doctrine.     Many  other 


1^8    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE    HARLAN 

cases  were  cited  to  develop  this  argument.  He  said :  "  It 
seems  to  me  that  the  court  has  not  given  to  the  maxim  of 
stare  decisis  the  full  effect  to  which  it  is  entitled.  While 
obedience  to  that  maxim  is  not  expressly  enjoined  by  the 
Constitution,  the  principle  that  decisions,  resting  upon  a  par- 
ticular interpretation  of  that  instrument,  should  not  be 
lightly  disregarded  where  such  interpretation  has  been  long 
accepted  and  acted  upon  by  other  branches  of  the  govern- 
ment and  by  the  public,  underlies  our  American  jurispru- 
dence. .  .  .  While,  in  a  large  sense,  constitutional  ques- 
tions may  not  be  considered  as  finally  settled,  unless  settled 
rightly,  it  is  certain  that  a  departure  by  this  court  from 
a  settled  course  of  decisions  on  grave  constitutional  ques- 
tions, under  which  vast  transactions  have  occurred,  and 
under  which  the  government  has  been  administered  during 
great  crises,  will  shake  public  confidence  in  the  stability  of 
the  law." 

"  I  have  a  deep,  abiding  conviction,"  he  continued,  "  which 
my  sense  of  duty  compels  me  to  express,  that  it  is  not 
possible  for  this  court  to  have  rendered  any  judgment  more 
to  be  regretted  than  the  one  just  rendered.  ...  In  my  judg- 
ment a  tax  on  income  derived  from  real  property  ought  not 
to  be,  and  until  now  has  never  been,  regarded  by  any  court 
as  a  direct  tax  on  such  property  within  the  meaning  of  the 
Constitution.  .  .  .  And,  in  view  of  former  adjudications, 
beginning  with  the  Hylton  case  and  ending  with  the  Springer 
case,  a  decision  now  that  a  tax  on  income  from  real  prop- 
erty can  be  laid  and  collected  only  by  apportioning  the  same 
among  the  states,  on  the  basis  of  numbers,  may,  not  im- 
properly, be  regarded  as  a  judicial  revolution,  that  may  sow 
the  seeds  of  hate  and  distrust  among  the  people  of  different 
sections  of  our  common  country." 

Though  the  above  quotation  might  seem  to  indicate  that 
Justice  Harlan  did  not  look  at  the  economic  meaning  of  a 
direct  tax,  the  following  will  show  that  he  was  not  unaware 
of  this  consideration :  "  In  determining  whether  a  tax  on 
income  from  rents  is  a  direct  tax,  within  the  meaning  of  the 


MISCELLANEOUS   TOPICS  1 79 

Constitution,  the  inquiry  is  not  whether  it  may  in  some  way 
indirectly  affect  the  land  or  the  landowner,  but  whether  it 
is  a  direct  tax  on  the  thing  taxed,  the  land.  The  circum- 
stance that  such  a  tax  may  possibly  have  the  effect  to 
diminish  the  value  of  the  use  of  the  land  is  neither  decisive 
of  the  question  nor  important.  While  a  tax  on  the  land 
itself,  whether  at  a  fixed  rate  applicable  to  all  lands  without 
regard  to  their  value,  or  by  the  acre  or  according  to  their 
market  value,  might  be  deemed  a  direct  tax  within  the 
meaning  of  the  Constitution  as  interpreted  in  the  Hylton 
case,  2l  duty  on  rents  is  a  duty  on  something  distinct  and 
entirely  separate  from,  although  issuing  out  of,  the  land." 

In  the  next  place,  Justice  Harlan  proceeded  to  show  how 
much  more  unreasonable  was  the  decision  that  income  from 
tangible  personal  property  should  not  be  subject  to  a  tax  by 
the  national  government  under  a  rule  of  uniformity  than 
was  the  decision  regarding  income  from  real  estate.  "When 
direct  taxes  are  restricted  to  capitation  taxes  and  taxes  on 
land,  taxation,  in  either  form,  is  limited  to  subjects  always 
found  wherever  population  is  found,  and  which  cannot  be 
consumed  or  destroyed.  They  are  subjects  which  can  al- 
ways be  seen  and  inspected  by  the  assessor,  and  have  im- 
mediate connection  with  the  country  and  its  soil  throughout 
its  entire  limits.     Not  so  with  personal  property." 

Furthermore,  he  upbraided  the  court  for  this  decision  be- 
cause of  the  practical  results  to  be  expected  from  it  regard- 
less of  former  adjudications.  "Why  do  I  say  that  the 
decision  just  rendered  impairs  or  menaces  the  national 
authority?  The  reason  is  so  apparent  that  it  need  only  be 
stated.  In  its  practical  operation  this  decision  withdraws 
from  national  taxation  not  only  all  incomes  derived  from 
real  estate,  but  tangible  personal  property,  'invested  per- 
sonal property,  bonds,  stocks,  investments  of  all  kinds,'  and 
the  income  that  may  be  derived  from  such  property.  This 
results  from  the  fact  that  by  the  decision  of  the  court,  all 
such  personal  property  and  all  incomes  from  real  estate 
and  personal  property,  are  placed  beyond  national  taxation 


l80    CONSTITUTIONAL   DOCTRINES   OF   JUSTICE    HARLAN 

Otherwise  than  by  apportionment  among  the  states  on  the 
basis  simply  of  population.  No  such  apportionment  can 
possibly  be  made  without  doing  gross  injustice  to  the  many 
for  the  benefit  of  the  favored  few  in  particular  states.  Any 
attempt  upon  the  part  of  Congress  to  apportion  among  the 
states,  upon  the  basis  simply  of  their  population,  taxation  of 
personal  property  or  of  incomes,  would  tend  to  arouse  such 
indignation  among  the  freemen  of  America  that  it  would 
never  be  repeated.  When,  therefore,  this  court  adjudges, 
as  it  does  now  adjudge,  that  Congress  cannot  impose  a  duty 
or  tax  upon  personal  property,  or  upon  income  arising  either 
from  rents  of  real  estate  or  from  personal  property,  *  in- 
cluding invested  personal  property,  bonds,  stocks,  and  in- 
vestments of  all  kinds,'  except  by  apportioning  the  sum  to  be 
so  raised  among  the  states  according  to  population,  it  prac- 
tically decides  that,  without  an  amendment  of  the  Constitu- 
tion— two  thirds  of  both  Houses  of  Congress  and  three 
fourths  of  the  states  concurring — such  property  and  incomes 
can  never  be  made  to  contribute  to  the  support  of  the 
national  government." 

In  closing  he  said:  "The  practical  effect  of  the  decision 
to-day  is  to  give  to  certain  kinds  of  property  a  position  of 
favoritism  and  advantage  inconsistent  with  the  fundamental 
principles  of  our  social  organization,  and  to  invest  them 
with  power  and  influence  that  may  be  perilous  to  that 
portion  of  the  American  people  upon  whom  rests  the  larger 
part  of  the  burdens  of  government,  and  who  ought  not  to 
be  subjected  to  the  dominion  of  aggregated  wealth  any  more 
than  the  property  of  the  country  should  be  at  the  mercy  of 
the  lawless." 

The  question  as  to  what  is  in  fact  a  direct  tax  is  impossible 
of  solution.  The  court  had  already  hit  upon  two  things 
that  were  as  nearly  direct  taxes  as  anything  could  be,  and 
there  the  matter  should  have  rested.  The  effect  of  the 
decision  was  to  make  necessary  an  amendment  to  the  Con- 
stitution of  the  United  States. 

Ex  Post  Facto  Laws. — The  case  of  Hawker  v.  New  York, 


MISCELLANEOUS   TOPICS  i8l 

170  U.  S.  189,  shows  what  Justice  Harlan  conceived  to  be 
an  ex  post  facto  law.  The  case  arose  because  of  the  denial 
to  a  physician,  by  a  statute  of  the  State  of  New  York,  of 
the  right  to  practice  medicine.  The  doctor  had  been  con- 
victed of  the  crime  of  abortion  and  sentenced  to  a  term 
of  ten  years  in  the  penitentiary.  He  had  served  his  term 
and  was  again  engaged  in  practice  when  the  State  passed  a 
statute  providing  that  no  one  who  had  been  convicted  of 
felony  should  practice  medicine.  The  doctor  was  arrested 
and  was  fined  two  hundred  and  fifty  dollars  for  treating  a 
patient,  and  this  case  was  taken  by  way  of  appeal  to  the 
Supreme  Court  of  the  United  States  upon  the  plea  that  the 
later  statute  was  an  ex  post  facto  law. 

The  court  held  that  law  valid,  and  said :  "  The  state  is  not 
seeking  to  further  punish  a  criminal,  but  only  to  protect  its 
citizens  from  physicians  of  bad  character.  The  vital  matter 
is  not  the  conviction,  but  the  violation,  of  law.  The  former 
is  merely  the  prescribed  evidence  of  the  latter.  Suppose  the 
statute  had  contained  only  a  clause  declaring  that  no  one 
should  be  permitted  to  act  as  a  physician  who  had  violated 
the  criminal  laws  of  the  state,  leaving  the  question  of  the 
violation  to  be  determined  according  to  the  ordinary  rules  of 
evidence,  would  it  not  seem  strange  to  hold  that  that  which 
conclusively  established  the  fact  effectually  relieved  from 
the  consequences  of  such  violation  ?  " 

To  Justice  Harlan  this  argument  was  unconvincing.  His 
claim  was  that  if  the  previous  law  had  stipulated  as  a  part 
of  the  punishment  of  felonies  that  a  physician  should  not 
thereafter  practice  medicine,  the  denial  of  the  privilege  to 
Hawker  would  not  have  been  ex  post  facto.  But  since  he 
had  suffered  the  penalty  imposed  by  the  State  for  the  crime 
committed,  any  additional  punishment  inflicted  for  the  same 
offence  would  be  ex  post  facto.  "If  the  statute  in  force 
when  the  offense  of  abortion  was  committed  had  provided 
that,  in  addition  to  imprisonment  in  the  penitentiary,  the 
accused,  if  convicted,  should  not  thereafter  practice  medi- 
cine, no  one,  I  take  it,  would  doubt  that  such  prohibition  was 


1 82     CONSTITUTIONAL  DOCTRINES   OF  JUSTICE   HARLAN 

a  part  of  the  punishment  prescribed  for  the  offense.  And 
yet  it  would  seem  to  be  the  necessary  result  of  the  opinion 
of  the  court  in  the  present  case,  that  a  statute  passed  after 
the  commission  of  the  offense  of  1877  and  which  by  its  own 
force,  made  it  a  crime  for  defendant  to  continue  in  the  prac- 
tice of  medicine,  is  not  an  addition  to  the  punishment  in- 
flicted upon  him  in  1878.  I  cannot  assent  to  this  view.  It 
is,  I  think,  inconsistent  with  the  provision  of  the  Constitu- 
tion of  the  United  States  declaring  that  no  State  shall  pass 
any  ex  post  facto  law." 

Justice  Harlan  also  urged  the  fact  that  the  offender  might 
have  become  a  different  sort  of  man  after  serving  in  prison 
and  therefore  be  well  suited  to  practice  medicine.  But  that 
point  seems  to  be  wide  of  the  mark.  It  has  an  important 
ethical  consideration,  but  could  have  no  bearing  upon  an 
ex  post  facto  law  as  such,  for  the  State  would  have  been 
denying  this  opportunity  of  reform  if  it  had  been  a  part  of 
the  punishment  of  the  crime  from  the  beginning  that  a 
physician  guilty  of  felony  should  not  again  practice 
medicine. 

But  it  might  be  argued  that  the  first  contention  was  well 
founded.  It  depends  upon  whether  the  law  is  considered 
simply  as  a  provision  to  insure  suitable  characters  for  the 
practice  of  medicine.  That  is  a  legitimate  police  measure, 
within  the  power  of  the  State.  If  the  law  be  looked  upon 
merely  as  instituting  a  punishment,  it  must  be  admitted  that 
Justice  Harlan  was  contending  correctly  that  the  law  was 
an  ex  post  facto  law,  for  the  statute  in  question  not  only 
operated  as  a  punishment  for  crime  after  it  had  been  com- 
mitted, but  also  after  the  man  had  been  punished  to  the 
full  extent  of  the  law  as  it  existed  at  the  time  of  the  com- 
mission of  the  crime. 

Copyrights. — The  Constitution  of  the  United  States  gives 
Congress  the  power  to  pass  laws  promoting  science  and 
useful  arts  by  means  of  patents  and  copyrights.  Under 
the  statutes  regulating  copyrights  a  very  amusing  case  came 
up  from  the  United  States  circuit  court  for  the  district  of 


MISCELLANEOUS   TOPICS  1 83 

Kentucky.^  This  court  had  decided  that  certain  copies  of 
pictures  of  dancing  girls  from  advertisements  of  the  Wallace 
circus  were  not  protected  by  the  laws  regulating  the  pro- 
duction of  useful  arts.  The  case  having  been  appealed  to 
the  Supreme  Court,  the  decision  of  the  lower  court  was 
reversed. 

The  following  quotation  from  the  decision,  rendered  by 
Justice  Holmes,  will  show  the  ground  of  the  reversal :  "  It 
would  be  a  dangerous  undertaking  for  persons  trained  only 
to  the  law  to  constitute  themselves  final  judges  of  the  worth 
of  pictorial  illustrations,  outside  of  the  narrowest  and  most 
obvious  limits.  At  the  one  extreme,  some  works  of  genius 
would  be  sure  to  miss  appreciation.  Their  very  novelty 
would  make  them  repulsive  until  the  public  had  learned  the 
new  language  in  which  their  author  spoke.  It  may  be  more 
than  doubted,  for  instance,  whether  the  etchings  of  Goya  or 
the  paintings  of  Manet  would  have  been  sure  of  protection 
when  seen  for  the  first  time.  At  the  other  end,  copyrights 
would  be  denied  to  pictures  which  appealed  to  a  public  less 
educated  than  the  judge.  Yet  if  they  command  the  interest 
of  any  public,  they  have  a  commercial  value — and  it  would 
be  bold  to  say  that  they  have  not  an  aesthetic  and  educa- 
tional value — and  the  taste  of  any  public  is  not  to  be  treated 
with  contempt.  It  is  an  ultimate  fact  for  the  moment,  what- 
ever may  be  our  hope  for  a  change.  That  these  pictures 
had  their  worth  and  their  success  is  sufficiently  shown  by  the 
desire  to  reproduce  them  without  regard  to  the  plaintiff's 
right." 

These  words  sound  almost  subHme,  but  it  must  be  ad- 
mitted that  they  become  ludicrous  when  used  in  connection 
with  a  bill-board  advertising  circus  dancing  girls.  And  that 
is  the  substance  of  Justice  Harlan's  dissent.  "The  clause 
of  the  Constitution  giving  Congress  the  power  to  promote 
the  progress  of  science  and  useful  arts,  by  securing  for 
limited  terms  to  authors  and  inventors  the  exclusive  use  of 
their  respective  work  and  discoveries,  does  not,  as  I  think, 
embrace  a  mere  advertisement  of  a  circus." 

1  Bleistein  v.  Donaldson  Lith.  Co.,  188  U.  S.  239. 


184     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

Self-incrimination. — In  Twining  v.  New  Jersey,  211  U. 
S.  78,  the  court  held  that  freedom  from  self-incrimination 
is  not  one  of  those  privileges  secured  to  citizens  by  the  due 
process  of  law  clause  of  the  fourteenth  amendment.  In 
dissenting  Justice  Harlan  criticized  the  court's  refusal  to 
determine  whether  self-incriminatory  evidence  had  been  de- 
manded. A  question  of  so  much  import,  he  said,  should 
not  be  decided  unless  it  is  necessary  in  order  to  decide  the 
case :  "  As  a  reason  why  it  takes  up  first  the  question  of  the 
power  of  a  state,  so  far  as  the  Federal  Constitution  is  con- 
cerned, to  compel  self-incrimination,  the  court  says  that  if 
the  right  here  asserted  is  not  a  Federal  right  that  is  an  end 
of  the  case,  and  it  must  not  go  further.  It  would,  I  submit, 
have  been  more  appropriate  to  say  that,  if  no  ground  what- 
ever existed,  under  the  facts  disclosed  by  the  record,  to  con- 
tend that  a  Federal  right  had  been  violated,  this  court  would 
be  without  authority  to  go  further  and  express  its  opinion 
on  an  abstract  question  relating  to  the  powers  of  the  states 
under  the  constitution." 

But  Justice  Harlan  further  contended  that  if  the  court 
had  found  that  the  right  had  been  violated  it  should  have 
pronounced  the  act  of  the  State  unconstitutional,  because, 
in  the  first  place,  he  believed  that  the  privileges  and  im- 
munities of  citizens  of  the  United  States  which  were  secured 
against  state  action  by  the  fourteenth  amendment  included 
also  those  enumerated  in  the  first  eight;  and  in  the  second 
place,  even  if  this  were  not  true,  a  proper  interpretation  of 
the  phrase  "  due  process  of  law "  includes  freedom  from 
self-incrimination.  In  this  connection  he  said :  "  In  my 
judgment,  immunity  from  self-incrimination  is  protected 
against  hostile  state  action,  not  only  by  that  clause  in  the 
14th  Amendment  declaring  that  'no  state  shall  make  or  en- 
force any  law  which  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States,'  but  by  the  clause,  in 
the  same  Amendment,  '  nor  shall  any  state  deprive  any  per- 
son of  life,  liberty,  or  property,  without  due  process  of  law.* 
No  argument  is  needed  to   support  the  proposition  that, 


MISCELLANEOUS   TOPICS  I  85 

whether  manifested  by  statute  or  by  the  final  judgment  of  a 
court,  state  action,  if  liable  to  the  objection  that  it  abridges 
the  privileges  or  immunities  of  national  citizenship,  must 
also  be  regarded  as  wanting  in  the  due  process  of  law  en- 
joined by  the  14th  Amendment,  when  such  state  action  sub- 
stantially affects  life,  liberty,  or  property." 

The  Insular  Cases. — Justice  Harlan  did  not  render  a  sep- 
arate dissenting  opinion  in  the  earlier  of  the  Insular  cases. 
His  concurrence  in  the  dissent  by  Chief  Justice  Fuller  in 
Downes  v.  Bidwell,  182  U.  S.  244,  however,  showed  that  he 
was  opposed  to  the  differentiation  made  by  the  court,  namely, 
that  which  placed  the  power  of  Congress  over  the  insular 
possessions  in  certain  respects  above  the  Constitution  of  the 
United  States.  The  case  of  Hawaii  v.  Mankichi,  190  U.  S. 
197,  contains  the  substance  of  his  whole  doctrine  regarding 
the  relation  of  the  United  States  to  the  newly  acquired  ter- 
ritory. 

The  question  at  issue  in  Hawaii  v.  Mankichi  was  whether 
the  Constitution  in  full  force  had  been  extended  to  the 
Hawaiian  Islands  by  the  joint  resolution  of  Congress  an- 
nexing themi.  The  opinion  of  the  court  in  this  case  was 
very  hotly  opposed  by  Justice  Harlan,  Chief  Justice  Fuller, 
and  Justice  Peckham.  The  majority  opinion  was  rendered 
by  Justice  Brown,  and  concurring  opinions  were  submitted 
by  Justices  White  and  McKenna.  Thus  it  is  seen  that  the 
court  was  sharply  divided. 

The  case  came  up  for  review  from  the  United  States  dis- 
trict court  for  Hawaii,  which  had  discharged  on  habeas 
corpus  a  man  convicted  of  manslaughter  because  he  had 
been  convicted  by  a  verdict  of  only  nine  of  the  twelve 
jurors.  The  decision  of  the  lower  court  was  that  such  con- 
viction was  not  in  accordance  with  the  guarantee  by  the  Con- 
stitution of  the  United  States  of  trial  by  jury,  in  that  ac- 
cording to  the  American  law  the  jury  must  agree  unani- 
mously on  their  verdict.  The  laws  of  Hawaii  allowed  such 
a  procedure,  and  thus  was  raised  the  question  whether  the 
Constitution  of  the  United  States  extended  with  full  force 


1 86    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE    HARLAN 

over  the  Hawaiian  Islands  after  their  annexation  to  this 
country. 

The  decision  of  the  court  in  this  case  was  based  upon  the 
idea  that  the  intention  and  not  the  letter  of  the  law  is  the 
law.  " '  A  thing  may  be  within  the  letter  of  a  statute  and 
not  within  its  meaning,  and  within  its  meaning,  though  not 
within  its  letter.  The  intention  of  the  lawmaker  is  the  law.' 
.  .  .  There  are  many  reasons  which  induce  us  to  hold  that 
the  act  was  not  intended  to  interfere  with  the  existing  prac- 
tice, when  such  interference  would  result  in  imperiling  the 
peace  and  good  order  of  the  islands." 

It  is  seen  that  the  argument  of  the  court  was  based  upon 
the  meaning  of  the  resolution,  that  is,  whether  it  intended 
to  extend  to  the  islands  all  of  the  privileges  and  rights  se- 
cured by  the  Constitution.  This  question  Justice  Harlan 
said  could  not  be  raised.  He  contended  that  it  is  not  for 
Congress  to  say  whether  the  Constitution  is  to  operate  in 
territory  which  had  been  incorporated  within  the  jurisdic- 
tion of  the  United  States.  If  it  is  constitutional  for  Con- 
gress to  admit  territory  by  joint  resolution,  well  and  good, 
but  there  is  where  the  power  of  Congress  stops.  Any  at- 
tempt to  allow  in  the  territories  acts  which  are  unconstitu- 
tional must  be  void. 

He  said :  "  In  my  opinion,  the  Constitution  of  the  United 
States  became  the  supreme  law  of  Hawaii  immediately  upon 
the  acquisition  by  the  United  States  of  complete  sovereignty 
over  the  Hawaiian  Islands,  and  without  any  act  of  Congress 
formally  extending  the  Constitution  to  those  islands.  It 
then,  at  least,  became  controlling,  beyond  the  power  of 
Congress  to  prevent.  From  the  moment  when  the  govern- 
ment of  Hawaii  accepted  the  joint  resolution  of  1898,  by  a 
formal  transfer  of  its  sovereignty  to  the  United  States — 
when  the  flag  of  Hawaii  was  taken  down,  by  authority  of 
Hawaii,  and  in  its  place  was  raised  that  of  the  United  States 
• — every  human  being  in  Hawaii,  charged  with  the  commis- 
sion of  crime  there,  could  have  rightly  insisted  that  neither 
his  life  nor  his  liberty  could  be  taken  as  a  punishment  for 


MISCELLANEOUS   TOPICS  1 8/ 

crime,  by  any  process,  or  as  a  result  of  any  mode  of  pro- 
cedure that  was  inconsistent  with  the  Constitution  of  the 
United  States.  Can  it  be  that  the  Constitution  of  the  United 
States  is  the  supreme  law  in  the  states  of  the  Union,  in  the 
organized  territories  of  the  United  States,  between  the  At- 
lantic and  Pacific  Oceans,  and  in  the  District  of  Columbia, 
and  yet  was  not,  prior  to  the  act  of  1900,  the  supreme  law 
in  the  territories  and  among  the  people  situated  as  were  the 
territory  and  people  of  Hawaii,  and  over  which  the  United 
States  had  acquired  all  rights  of  sovereignty  of  whatsoever 
kind?  A  negative  answer  to  this  question,  and  a  recogni- 
tion of  the  principle  that  such  an  answer  involves  would 
place  Congress  above  the  Constitution.  .  .  . 

"  I  am  of  opinion :  i.  That  when  the  annexation  of  Hawaii 
was  completed,  the  Constitution — without  any  declaration 
to  that  effect  by  Congress,  and  without  any  power  of  Con- 
gress to  prevent  it — ^became  the  supreme  law  for  that  coun- 
try, and,  therefore,  it  forbade  the  trial  and  conviction  of 
the  accused  for  murder  otherwise  than  upon  a  presentment 
or  an  indictment  of  a  grand  jury,  and  by  the  unanimous 
verdict  of  a  petit  jury.  2.  That  if  the  legality  of  such  trial 
and  conviction  is  to  be  tested  alone  by  the  Joint  Resolution 
of  1898,  then  the  law  is  for  the  accused,  because  Congress, 
by  that  Resolution,  abrogated,  or  forbade  the  enforcement 
of,  any  municipal  law  of  Hawaii,  so  far  as  it  authorized  a 
trial  for  an  infamous  crime  otherwise  than  in  the  mode  pre- 
scribed by  the  Constitution  of  the  United  States;  and  that 
any  other  construction  of  the  resolution  is  forbidden  by  its 
clear,  unambiguous  words,  and  is  to  make,  not  to  interpret, 
the  law." 

One  other  quotation  will  be  to  the  point :  "  I  stand  by  the 
doctrine  that  the  Constitution  is  the  supreme  law  in  every 
territory,  as  soon  as  it  comes  under  the  sovereign  dominion 
of  the  United  States  for  purposes  of  civil  administration, 
and  whose  inhabitants  are  under  its  entire  authority  and 
jurisdiction.  I  could  not  otherwise  hold  without  conceding 
the  power  of  Congress,  the  creature  of  the  Constitution,  by 


1 88     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

mere  nonaction,  to  withhold  vital  constitutional  guarantees 
from  the  inhabitants  of  a  territory  governed  by  the  author- 
ity and  only  by  the  authority  of  the  United  States.  Such 
a  doctrine  would  admit  of  the  exercise  of  absolute,  arbi- 
trary legislative  power  under  a  written  Constitution  full  of 
restrictions  upon  Congress,  and  designed  to  Hmit  the  sep- 
arate departments  of  government  to  the  exercise  of  only 
expressly  enumerated  powers  and  such  other  powers  as  may 
be  implied  therefrom, — each  department  always  acting  in 
subordination  to  that  instrument  as  the  supreme  law  of  the 
land.  Indeed,  it  has  been  announced  by  some  statesmen 
that  the  Constitution  should  be  interpreted  to  mean,  not 
what  its  words  naturally,  or  usually,  or  even  plainly,  import, 
but  what  the  apparent  necessities  of  the  hour,  or  the  ap- 
parent majority  of  the  people,  at  a  particular  time,  demand 
at  the  hands  of  the  judiciary.  I  cannot  assent  to  any  such 
view  of  the  Constitution.  Nor  can  I  approve  of  the  sugges- 
tion that  the  status  of  Hawaii  and  the  powers  of  its  local 
government  are  to  be  *  measured'  by  the  resolution  of  1898, 
without  reference  to  the  Constitution.  It  is  impossible  for 
me  to  grasp  the  thought  that  that  which  is  admittedly  con- 
trary to  the  supreme  law  can  be  sustained  as  valid." 

These  sentiments  were  reasserted  in  dissenting  in  the 
cases  of  Dorr  v.  United  States,  195  U.  S.  138,  and  Trono  v. 
United  States,  199  U.  S.  521.  Since,  however,  the  views 
expressed  in  his  opinions  there  were  substantially  the  same 
as  those  expressed  in  the  case  of  Hawaii  v.  Mankichi,  they 
need  not  be  discussed  further. 

Interstate  Comity. — Though  the  question  of  interstate 
comity  is  a  broad  one,  the  points  wherein  Justice  Harlan 
differed  from  the  court  have  not  been  numerous.  The  case 
of  Chambers  v.  Baltimore  and  Ohio  R.  Co.,  207  U.  S.  142, 
is  the  only  one  that  needs  to  be  considered.  In  this  case 
was  involved  the  right  of  a  citizen  of  Pennsylvania,  the 
widow  of  a  fireman  on  the  Baltimore  and  Ohio  Railroad, 
who  was  also  a  citizen  of  Pennsylvania,  to  sue  in  an  Ohio 
court.     Suit  had  been  brought  in  the  lower  court  and  dam- 


MISCELLANEOUS   TOPICS  I  89 

ages  amounting  to  $3000  had  been  allowed.  But  this  deci- 
sion had  been  reversed  by  the  supreme  court  of  the  State  of 
Ohio,  on  the  ground  that  the  plaintiff  could  not  sue  in  the 
Ohio  courts  because  of  a  statute  of  Ohio  which  prevented 
it.  Whereupon  the  case  was  appealed  to  the  Supreme  Court 
of  the  United  States  upon  the  ground  that  the  statute  was 
in  violation  of  the  clause  of  the  federal  Constitution  which 
provides  that  "  the  citizens  of  each  State  shall  be  entitled  to 
all  privileges  and  immunities  in  the  several  States." 

The  court  upheld  the  statute  on  the  ground  that  it  did  not 
make  any  discrimination  against  citizens  of  other  States. 
"  The  courts  were  open  in  such  cases  to  plaintiffs  who  were 
citizens  of  other  states  if  the  deceased  was  a  citizen  of 
Ohio;  they  were  closed  to  plaintiffs  who  were  citizens  of 
Ohio  if  the  deceased  was  a  citizen  of  another  state.  So 
far  as  the  parties  to  the  litigation  are  concerned,  the  state, 
by  its  laws,  made  no  discrimination  based  on  citizenship, 
and  offered  precisely  the  same  privileges  to  citizens  of  other 
states  which  it  allowed  to  its  own." 

Justice  Harlan  differed  from  the  court  in  that  it  presumed 
to  interpret  the  statute  for  itself  instead  of  considering  the 
law  as  it  stood  under  the  interpretation  of  the  state  court. 
The  state  court  had  expressly  said  that  if  the  plaintiff  had 
been  a  citizen  of  the  State  of  Ohio  the  damages  would  have 
been  held  valid.  "  That  there  may  be  no  mistake  as  to  the 
decision,  I  quote  the  official  syllabus  of  the  present  case, 
which,  by  the  law  of  Ohio,  is  to  be  taken  as  indicating  the 
point  actually  in  judgment :  *  No  action  can  be  maintained 
in  the  courts  of  this  state  upon  a  cause  of  action  for  wrong- 
ful death  occurring  in  another  state,  except  where  the  per- 
son wrongfully  killed  was  a  citizen  of  the  state  of  Ohio!  .  .  . 

"  In  that  view,  if  two  persons,  one  a  citizen  of  Ohio  and 
the  other  a  citizen  of  Pennsylvania,  travelling  together  on  a 
railroad  in  Pennsylvania,  should  be  killed  at  the  same  mo- 
ment and  under  precisely  the  same  circumstances,  in  con- 
sequence of  the  neghgence  or  default  of  the  railroad  com- 
pany, the  courts  of  Ohio  are  closed  by  its  statute  against 

13 


190     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

any  suit  for  damages  brought  by  the  widow  or  the  estate 
of  the  citizen  of  Pennsylvania  against  the  railroad  company, 
but  will  be  open  to  suit  by  the  widow  or  the  estate  of  the 
deceased  citizen  of  Ohio,  although  by  the  laws  of  the  state 
where  the  death  occurred  the  widow  or  estate  of  each  de- 
cedent would  have,  in  the  latter  state,  a  valid  cause  of  ac- 
tion. .  .  . 

"With  entire  respect  for  the  views  of  others,  I  am  con- 
strained to  say  that  in  my  opinion,  so  much  of  the  local 
law,  whether  statutory  or  otherwise,  as  permits  suits  of  this 
kind  for  damages  where  the  deceased  was  not  a  citizen  of 
Ohio,  is  unconstitutional." 

Thus  it  is  seen  that  Justice  Harlan  would  have  been  more 
strict  than  the  court  was  in  its  interpretation  of  the  clause 
of  the  Constitution  which  secures  interstate  comity.  There 
is  also  seen  another  instance  of  his  desire  to  secure  legal 
remedies  to  the  individual. 

Labor  Legislation. — Under  the  head  of  labor  legislation 
it  is  necessary  to  refer  to  some  cases  which  are  not  primarily 
concerned  with  constitutional  law.  From  Justice  Harlan's 
dissents  from  these  cases  may  be  gathered  a  general  impres- 
sion of  his  attitude  regarding  the  relation  of  the  Constitu- 
tion to  labor  reform. 

The  case  of  New  England  R.  Co.  v.  Conroy,  175  U.  S. 
323,  presents  a  very  interesting  dispute  between  Justice 
Harlan  and  the  court  as  to  the  meaning  of  a  fellow-servant. 
Justice  Harlan  contended  that  the  conductor  should  have 
been  looked  upon  as  the  representative  of  the  railroad  com- 
pany on  the  trains,  and  that  all  of  his  subordinates  were  re- 
sponsible to  the  company  through  him,  when  by  pronounc- 
ing the  conductor  a  fellow-servant  with  a  brakeman  the 
Court  exempted  the  railroad  company  from  damages  which 
a  jury  had  granted.  "  In  my  judgment,"  he  said,  "the  con- 
ductor of  a  railroad  train  is  the  representative  of  the  com- 
pany in  respect  of  its  management,  all  the  other  employees 
on  the  train  are  his  subordinates  in  matters  involved  in  such 
management,  and  for  injury  received  by  any  one  of  those 


MISCELLANEOUS   TOPICS  I9I 

subordinates  during  the  management  of  the  train  by  reason 
of  the  negligence  of  the  conductor  the  railroad  company- 
should  be  held  responsible." 

Again,  in  Baltimore  and  Ohio  Southwestern  R.  Co.  v. 
Voigt,  176  U.  S.  498,  when  the  Supreme  Court  declared 
that  an  express  messenger  could  not  be  termed  a  passenger, 
and  hence  could  not  receive  damages  for  injuries  sustained 
in  a  wreck,  Justice  Harlan  dissented.  He  contended  that 
such  persons  ought  not  to  be  excluded  from  that  class  of 
persons  who  could  recover  damages  for  injuries  received 
while  working  on  trains.  He  said :  "  I  am  of  opinion  that 
the  present  case  is  within  the  doctrines  of  New  York  C.  R. 
Co.  V.  Lockwood,  and  that  the  judgment  should  be  affirmed 
upon  the  broad  ground  that  the  defendant  corporation 
could  not,  in  any  form,  stipulate  for  exemption  from  re- 
sponsibility for  the  negligence  of  its  servants  or  employees 
in  the  course  of  its  business,  whereby  injury  comes  to  any 
person  using  its  cars,  with  its  consent  for  purposes  of  trans- 
portation. That  the  person  transported  is  not  technically  a 
passenger  and  does  not  ride  in  a  car  ordinarily  used  for 
passengers  is  immaterial." 

This  natural  sympathy  for  the  employee  or  laborer,  which 
was  evidenced  in  the  two  cases  just  mentioned,  came  out  in 
full  force  in  his  dissent  from  Lochner  v.  New  York,  198  U. 
S.  45.  Here  the  Supreme  Court  held  invahd  a  law  of  New 
York  which  attempted  to  limit  the  hours  of  employment  of 
bakers  to  ten  hours  a  day.  The  court  declared  that  such 
legislation  was  "  an  arbitrary  interference  with  the  freedom 
to  contract  guaranteed  by  the  14th  Amendment  which  can- 
not be  sustained  as  a  valid  exercise  of  the  poHce  power  to 
protect  the  public  health,  safety,  and  morals,  or  general 
welfare."  In  a  somewhat  lengthy  dissent  from  this  case 
Justice  Harlan  undertook  to  prove  by  quotations  from 
various  sociological  and  medical  authorities  that  the  trade 
of  a  baker  had  a  tendency  to  shorten  the  lives  of  those  en- 
gaged in  it. 


192     CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

He  dissented  again  from  the  case  of  Howard  v.  Illinois 
Central  R.  Co.,  207  U.  S.  463,  when  the  court  declared  un- 
constitutional the  federal  employers'  liability  act  of  June  11, 
1906.  While  he  did  not  think  that  this  act  could  apply  to 
intrastate  commerce,  he  contended  that  it  should  have  been 
declared  effective  for  injuries  which  could  be  shown  to  have 
occurred  in  interstate  commerce. 


CHAPTER  VIII 
Judicial  Legislation 

It  is  particularly  interesting  to  note  the  fact  that  the  first 
and  last  dissenting  opinions  which  Justice  Harlan  delivered 
were  on  the  subject  of  judicial  legislation.  And  there  is  no 
marked  difference  in  the  tone  of  these  opinions,  except  that 
the  first  contained  the  firmness  and  positiveness  of  a  middle- 
aged  man,  while  the  last  contained  the  uneasiness  and  solici- 
tude of  an  old  man.  In  the  first  was  a  clear  and  definite 
respect  for  legislation  as  it  read,  in  the  last  was  a  spirited 
condemnation  of  society  for  looking  to  the  court  to  correct 
legislation.  While  the  first  was  directed  only  to  the  court, 
the  last  was  broader  and  contained  a  sting  for  any  one  who 
desired  to  extend  the  power  of  the  court  beyond  its  duly 
recognized  judicial  power.  The  first  case  was  that  of  United 
States  V.  Clark,  96  U.  S.  37,  the  last  cases  were  the  Standard 
Oil  Company  and  American  Tobacco  Company  decisions, 
221  U.  S.  I  and  106.  Many  times  between  these  are  found 
reassertions  of  the  same  sentiment. 

Discussion  of  Cases. — The  case  of  United  States  v.  Clark 
will  bear  emphasis  not  only  because  it  stands  in  direct  rela- 
tion to  our  subject,  but  also  because  it  was  Justice  Harlan's 
first  dissenting  opinion.  The  case  came  up  from  the  court 
of  claims  of  the  United  States.  A  man  named  Clark,  who 
was  paymaster  in  the  northern  army  during  the  Civil  War, 
claimed  that  he  had  been  robbed  of  the  sum  of  $15,978.87. 
The  questions  at  issue  were  whether  Clark  could  be  allowed 
to  testify  in  his  own  behalf  as  to  the  amount  stolen,  and 
whether  he  was  excluded  from  the  court  of  claims  anyway 
because  he  had  waited  too  long  to  bring  suit. 

The  first  point  made  by  the  counsel  for  the  United  States, 
namely,  that  the  plaintiff  could  not  be  allowed  to  testify  in 
his  own  behalf,  was  easily  overruled  by  asserting  that  though 

193 


194    CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

the  claimant's  testimony  could  not  be  accepted  as  valid  tes- 
timony, "  it  may  be  proper  as  corroborative  "of  the  alleged 
amount.  The  other  contention  on  the  part  of  the  counsel 
for  the  government  was  as  easily  disposed  of  by  asserting 
that  the  right  of  the  claimant  did  not  accrue  until  the  ac- 
counting officers  had  held  him  liable  for  the  sum  lost.  By 
this  interpretation  the  suit  was  brought  within  the  time  al- 
lowed. 

Justice  Harlan  approved  of  neither  of  these  rulings.  He 
thought  that  the  judgment  of  the  court  of  claims  should 
have  been  reversed,  with  an  order  that  the  case  be  dismissed. 
Referring  to  the  first  point,  he  said :  "  In  all  '  Courts  of  the 
United  States '  parties  may  testify,  but  in  the  Court  of 
Claims  no  plaintiff  can  testify  against  the  United  States  in 
support  of  his  claim  or  right.  So  reads  the  statute ;  and  it 
is,  I  submit,  the  duty  of  this  court  to  obey  it,  leaving  to 
Congress  to  make  such  changes  in  the  rules  of  evidence  in 
the  Court  of  Claims  as  its  views  of  public  policy  may  sug- 
gest. It  may  be  unfortunate  for  Clark  if  he  be  denied  an 
opportunity  to  testify  as  to  the  amount  of  his  loss;  but,  as 
said  by  Lord  Campbell,  Ch.  /.,  '  It  is  the  duty  of  all  courts 
of  justice  to  take  care,  for  the  general  good  of  the  com- 
munity, that  hard  cases  do  not  make  bad  law.' "  He  said 
further :  "  With  entire  respect  for  the  opiijion  of  my  breth- 
ren, I  submit  that  the  construction  which  the  court  places 
upon  the  Act  of  June  25,  1868,  seems  to  fall  very  little 
short  of  judicial  legislation." 

He  referred  to  the  second  point  in  the  following  words : 
"  Clark,  in  order  to  obtain  relief  from  responsibility  on  ac- 
count of  the  alleged  robbery,  was  required  to  present  to  the 
proper  accounting  officers  a  decree  of  the  Court  of  Claims, 
directing  that  he  should  receive  credit  for  the  amount  taken 
from  him  by  robbery.  It  was  not,  therefore,  a  misuse  of 
words  for  Congress  to  describe  a  demand  for  relief  under 
the  Act  of  1866  as  a  *  claim.'  If  a  *  claim,'  it  was  clearly 
barred  by  the  Act  of  1863,  unless  it  be  true  as  suggested 
in  the  opinion  of  the  court  that  the  claim  did  not  accrue 


JUDICIAL   LEGISLATION  I  95 

until  the  credit  which  Clark  had  given  himself  in  his  report 
of  the  robbery  was  rejected  at  the  Treasury  in  1871 ;  but, 
unquestionably,  his  crediting  himself  with  the  amount  taken 
from  him  by  the  robbery  was  an  unauthorized  act.  The 
accounting  officers  could  not,  except  in  pursuance  of  a 
decree  of  the  Court  of  Claims,  lawfully  allow  such  a  credit; 
and  their  failure  to  promptly  disallow  it  did  not  give  Clark 
any  additional  right,  nor  deprive  the  Government  of  any 
right  which  it  possessed.  Neither  his  nor  their  action  could 
suspend  the  running  of  the  Statute  of  Limitations.  His 
claim,  therefore,  accrued  immediately  upon  the  passage  of 
the  Act  of  May  9,  1866.  Not  having  been  asserted  by  suit 
within  six  years  from  that  date,  it  was  barred." 

It  has  not  been  thought  necessary  to  explain  the  meaning 
of  the  various  acts  referred  to  which  established  and  laid 
down  rules  for  the  conduct  of  trials  in  the  court  of  claims. 
It  is  sufficiently  evident  that  the  stipulation  was  made  that 
the  claim  had  to  be  set  up  within  six  years  after  it  accrued, 
and  that  the  court  quibbled  over  what  is  meant  by  a  claim 
in  order  to  prevent  that  stipulation  from  debarring  the 
suit.  It  is  also  evident  that  Justice  Harlan  thought  that 
the  quibble  of  the  court  was  unjustified. 

This  case  is  typical  as  illustrating  Justice  Harlan's  con- 
ception of  the  position  which  the  court  should  occupy  in  our 
government.  If  any  case  could  have  arisen  which  would 
have  called  for  the  sacrifice  of  his  conviction  on  this  subject, 
this  case  certainly  would  have  had  that  effect.  He  himself 
had  been  a  commander  in  the  northern  army.  Here  was  a 
paymaster  of  that  army,  from  whom  fifteen  thousand  dollars 
had  been  stolen,  but  so  far  as  a  proper  interpretation  of  the 
law  went,  he  had  to  lose  that  amount.  If  anything  would 
have  aroused  Justice  Harlan's  sympathy  this  loss  on  the 
part  of  a  fellow  soldier  should  certainly  have  done  so,  and 
it  doubtless  did.  But  he  recognized  the  necessity  of  having 
the  court  interpret  the  law  for  the  general  good  of  the 
nation.  His  conviction  as  to  the  integrity  of  the  law  was 
a  higher  conviction  than  that  one  unfortunate  man  should 


196    CONSTITUTIONAL   DOCTRINES   OF   JUSTICE    HARLAN 

not  suffer.  The  case,  however,  does  not  argue  that  he  put 
the  letter  of  the  law  above  the  spirit  of  it.  Other  cases 
where  a  possible  interpretation  would  allow  the  individual 
to  be  benefited  show  the  reverse  as  to  his  manner  of  ap- 
proaching a  decision.  But  since  the  letter  and  the  spirit 
both  in  this  case  called  for  a  different  interpretation,  he 
held  that  it  should  have  been  interpreted  differently. 

In  following  out  the  course  of  Justice  Harlan's  utterances 
on  this  matter,  brief  references  only  will  be  necessary  in 
most  cases.  It  was  found  that  in  the  Civil  Rights  Cases, 
109  U.  S.  3,  he  thought  that  the  court  had  no  right  to  de- 
clare what  was  appropriate  legislation  for  the  enforcement 
of  the  thirteenth  and  fourteenth  amendments.  He  said: 
"Under  given  circumstances,  that  which  the  court  char- 
acterizes as  corrective  legislation  might  be  deemed  by  Con- 
gress as  appropriate  legislation  and  entirely  sufficienlT. 
Under  other  circumstances  primary  direct  legislation  may 
be  required.  But  it  is  for  Congress,  not  the  judiciary,  to 
say  that  legislation  is  appropriate;  that  is,  best  adapted  to 
the  end  to  be  attained.  The  judiciary  may  not  with  safety 
to  our  institutions  enter  the  domain  of  legislative  discretion, 
and  dictate  the  means  which  Congress  shall  employ  in  the 
exercise  of  its  granted  powers.  That  would  be  sheer 
usurpation  of  the  functions  of  a  co-ordinate  department, 
which,  if  often  repeated,  would  work  a  radical  change  in 
our  system." 

In  Pollock  V.  Farmers'  Loan  and  Trust  Co.,  158  U.  S. 
601,  Justice  Harlan  spoke  as  follows :  "  It  was  said  in  argu- 
ment that  the  passage  of  the  statute  imposing  this  income 
tax  was  an  assault  by  the  poor  upon  the  rich,  and  by  much 
eloquent  speech  this  court  has  been  urged  to  stand  in  the 
breach  for  the  protection  of  the  just  rights  of  property 
against  the  advancing  hosts  of  Socialism.  With  the  policy 
of  legislation  of  this  character,  the  court  has  nothing  to  do. 
That  is  for  the  legislative  branch  of  the  government.  It  is 
for  Congress  to  determine  whether  the  necessities  of  the 
government  are  to  be  met,  or  the  interests  of  the  people  sub- 


JUDICIAL   LEGISLATION  1 97 

served,  by  the  taxation  of  incomes.  With  that  determina- 
tion, so  far  as  it  rests  upon  grounds  of  expediency  or  public 
policy,  the  courts  can  have  no  rightful  concern.  The  safety 
and  permanency  of  our  institutions  demand  that  each  de- 
partment of  government  shall  keep  within  its  legitimate 
sphere  as  defined  by  the  supreme  law  of  the  land.  We  deal 
here  only  with  questions  of  law." 

In  Robertson  v.  Baldwin,  165  U.  S.  275,  a  similar  utter- 
ance is  found :  "  It  will  not  do  to  say  that  by  *  immemorial 
usage*  seamen  could  be  held  in  a  condition  of  involuntary 
servitude,  without  having  been  convicted  of  crime.  The 
people  of  the  United  States,  by  an  amendment  to  their 
fundamental  law,  have  solemnly  decreed  that  '  except  as  a 
punishment  for  crime,  whereof  the  party  shall  have  been 
duly  convicted,'  involuntary  servitude  shall  not  exist  in 
any  form  in  this  country.  The  adding  of  another  exception 
by  interpretation  simply,  and  without  amending  the  Con- 
stitution, is,  I  submit,  judicial  legislation.  It  is  a  ver^ 
serious  matter  when  a  judicial  tribunal,  by  the  construction 
of  an  act  of  Congress,  defeats  the  expressed  will  of  the 
legislative  branch  of  government.  It  is  a  still  more  serious 
matter  when  the  clear  reading  of  a  constitutional  provision 
relating  to  the  liberty  of  a  man  is  departed  from  in  defer* 
ence  to  what  is  called  usage  which  has  existed,  for  the  most 
part,  under  monarchical  and  despotic  governments." 

As  was  seen  in  Hawaii  v.  Mankichi,  190  U.  S.  197,  Justice 
Harlan  accused  the  court  of  so  interpreting  an  act  of  Con- 
gress that  it  amounted  to  the  passage  by  that  body  of  an  act 
which  it  could  not  constitutionally  pass,  and  gave  a  meaning 
to  it  which  Congress  clearly  did  not  intend  that  it  should 
have.  He  said:  "The  opinion  of  the  court  contains 
observations  to  the  effect  that  some  persons,  heretofore 
convicted  of  crime  in  the  Hawaiian  courts,  will  escape 
punishment  if  the  joint  resolution  of  1898  is  so  interpreted 
as  to  make  Congress  mean  what,  it  is  conceded,  the  words 
'  contrary  to  the  Constitution  of  the  United  States'  naturally 
import.     In  the  eye  of  the  law  that  is  of  no  consequence. 


198     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

The  cases  cited  by  the  court  fall  far  short  of  sustaining  the 
proposition  that  the  court  may  reject  the  plain,  obvious 
meaning  of  the  words  of  the  statute  in  order  to  remedy  what 
it  deems  an  omission  by  Congress.  The  consequences  of  a 
particular  construction  may  be  taken  into  account  only 
when  the  words  to  be  construed  are  ambiguous." 

In  the  case  of  Houghton  v.  Payne,  194  U.  S.  88,  there  is 
a  characteristic  dissent  by  Justice  Harlan.  Houghton, 
Mifflin  and  Company,  publishers  of  the  Riverside  Litera- 
ture Series,  thought  that  they  were  treated  wrongly  in 
having  these  publications  termed  third-class  matter,  because, 
in  spite  of  the  fact  that  each  volume  was  complete  in  itself, 
the  volumes  were  issued  periodically.  For  sixteen  years 
the  post-office  department  had  interpreted  the  portion  of  the 
statute  of  Congress  bearing  on  this  point  to  mean  that  the 
Riverside  Series  were  periodicals  instead  of  books.  Several 
attempts  had  been  made  to  get  Congress  to  amend  the 
statute,  but  all  had  failed.  Postmaster-General  Payne,  how- 
ever, deHberately  classed  the  Riverside  Series  as  third-class 
matter,  and  the  rate  was  changed  accordingly.  The  pub- 
lishers brought  suit  to  have  the  action  of  Payne  pronounced 
invalid.  This  the  lower  court  refused  to  do,  and  upon 
appeal  to  the  United  States  Supreme  Court  the  decision 
below  was  sustained.  The  court  reasoned  as  follows: 
"  While  it  might  well  happen  that  by  reason  of  the  relative 
unimportance  of  the  question  when  originally  raised  a  too 
liberal  construction  might  have  been  given  to  the  word 
periodical,  we  cannot  think  that  if  this  question  had  been 
raised  for  the  first  time  after  second  class  mail  matter  had 
obtained  its  present  proportions,  a  like  construction  would 
have  been  given.  Some  considerations  in  connection  with 
the  revocation  of  these  certificates  may  properly  be  accorded 
to  the  great  expense  occasioned  by  this  interpretation,  and 
the  discrimination  in  favor  of  certain  publishers  and  against 
others,  to  which  allusion  has  already  been  made.  We  regard 
publications  of  the  Riverside  Literature  Series  as  too  clearly 
within  the  denomination  of  books  to  justify  us  in  approving 


JUDICIAL   LEGISLATION  1 99 

a  classification  of  them  as  periodicals,  notwithstanding  the 
length  of  time  such  classification  obtained." 

Justice  Harlan,  with  whom  concurred  the  Chief  Justice, 
thought  that  the  court  exceeded  its  power  in  this  case  and 
did  what  amounted  to  amending  an  act  of  Congress.  His 
language  on  this  point  is  as  follows :  "  In  our  judgment,  the 
appellants  properly  construe  the  statute.  We  think  it 
obviously  means  just  what  the  Department  held  it  to  mean 
for  more  than  sixteen  years.  But  the  very  utmost  that  the 
government  can  claim  is  that  the  statute  in  question  is 
doubtful  in  meaning  and  scope.  The  rule  in  such  a  case  is 
not  to  disturb  the  long  continued  practice  of  the  Depart- 
ment in  its  execution  of  a  statute,  leaving  to  Congress  to 
change  it  when  public  interests  require  that  to  be  done.  But 
the  Department,  after  being  informed  repeatedly  by  Con- 
gress that  the  change  asked  by  Postmasters  General  would 
not  be  made,  concluded  to  effect  the  change  by  a  mere  order 
that  would  make  the  statute  mean  what  the  practice  of 
sixteen  years,  and  the  repeated  action  of  Congress  had  prac- 
tically said  it  did  not  mean  and  was  never  intended  to  mean. 
This  is  a  mode  of  amending  and  making  laws  that  ought 
not  to  be  encouraged  or  approved."  This  dissent  was 
typical  of  Justice  Harlan.  He  thought  that  it  was  improper 
thus  to  burden  a  publication  that  put  the  best  literature  so 
cheaply  into  the  hands  of  the  people  when  there  were  suffi- 
cient constitutional  grounds  for  not  doing  so. 

In  the  cases  of  the  Standard  Oil  Company  v.  United 
States,  221  U.  S.  i,  and  United  States  v.  American  Tobacco 
Co.,  221  U.  S.  106,  much  of  the  action  of  the  court  was  not 
necessary  for  the  decision  of  the  case.  Instead  of  doing 
the  simple  thing,  the  court  went  out  of  its  way  to  show 
that  a  combination  was  unreasonable  when  it  could  have 
merely  pronounced  it  in  restraint  of  trade. 

When  we  read  Justice  Harlan's  dissenting  opinion  from 
the  case  of  United  States  v.  E.  C.  Knight  Co.,  156  U.  S.  i, 
and  note  how  many  times  he  uses  the  words  "  unreasonable  " 
and  "  undue  "  as  modifiers  of  the  phrase  "  restraint  of  trade," 


200    CONSTITUTIONAL   DOCTRINES   OF   JUSTICE   HARLAN 

we  wonder  why  he  objected  to  the  use  of  the  words  in  the 
Standard  Oil  decision.  On  deeper  inspection,  the  reason 
for  this  objection  becomes  evident.  If  the  court  had  simply 
said  that  the  restraint  was  an  "  unreasonable  "  restraint  of 
trade  without  affirmative  comment  upon  the  necessity  of 
the  word  being  in  the  statute,  it  is  doubtful  whether  Justice 
Harlan  would  have  dissented  at  all.  It  was  the  manner  in 
which  the  word  was  employed  that  he  disliked.  The  word 
was  added  after  considerable  weighing  of  the  wording  of 
the  statute  and  lengthy  investigation  into  the  meaning  and 
methods  of  regulating  monopolies.  And  it  must  be  further 
noted  that  Congress  had  long  remained  silent  after  a  dis- 
senting opinion  of  the  same  judge  had  suggested  that  the 
word  be  supplied.  This  fact  argued  to  Justice  Harlan's 
mind  that  Congress  meant  that  the  word  should  not  be 
supplied. 

The  following  quotation  will  show  the  court's  argument 
in  the  Standard  Oil  case:  "And  as  the  contracts  or  acts 
embraced  in  the  provision  were  not  expressly  defined,  since 
the  enumeration  addressed  itself  simply  to  classes  of  acts, 
those  classes  being  broad  enough  to  embrace  every  con- 
ceivable contract  or  combination  which  could  be  made 
concerning  trade  or -commerce  or  the  subjects  of  such  com- 
merce, and  thus  caused  any  act  done  by  any  of  the  enu- 
merated methods  anywhere  in  the  whole  field  of  human 
activity  to  be  illegal  if  in  restraint  of  trade,  it  inevitably  fol- 
lows that  the  provision  necessarily  called  for  the  exercise 
of  judgment  which  required  that  some  standard  should  be 
resorted  to  for  the  purpose  of  determining  whether  the  pro- 
hibition contained  in  the  statute  had  or  had  not  in  any  given 
case  been  violated.  Thus  not  specifying,  but  indubitably 
contemplating  and  requiring  a  standard,  it  follows  that  it 
was  intended  that  the  standard  of  reason  which  had  been 
applied  at  the  common  law  and  in  this  country  in  dealing 
with  subjects  of  the  character  embraced  by  the  statute  was 
intended  to  be  the  measure  used  for  the  purpose  of  deter- 
mining whether,  in  a  given  case,  a  particular  act  had  or  had 


JUDICIAL  LEGISLATION  20I 

not  brought  about  the  wrong  against  which  the  statute 
provided." 

As  has  been  seen,  Justice  Harlan  in  his  dissent  in  the 
Standard  Oil  case  first  condemned  the  court  for  dwelling 
at  length  on  a  point  which  did  not  need  to  be  dwelt  on  in 
order  to  decide  the  case.  He  then  entered  upon  some  gen- 
eralizations as  to  the  evil  effects  to  be  expected  by  such  action 
on  the  part  of  the  court.  He  said:  "I  said  at  the  outset 
that  the  action  of  the  court  in  this  case  might  well  alarm 
thoughtful  men  who  revered  the  Constitution.  I  meant  by 
this  that  many  things  are  intimated  and  said  in  the  court's 
opinion  which  will  not  be  regarded  otherwise  than  as  sanc- 
tioning an  invasion  by  the  judiciary  of  the  constitutional 
domain  of  Congress, — an  attempt  by  interpretation  to  soften 
or  modify  what  some  regard  as  a  harsh  public  policy.  This 
court,  let  me  repeat,  solemnly  adjudged  many  years  ago 
that  it  could  not,  except  by  ' judicial  legislation'  read  words 
into  the  anti-trust  act  not  put  there  by  Congress,  and  which, 
being  inserted,  gives  it  a  meaning  which  the  words  of  the 
act,  as  passed,  if  properly  interpreted,  would  not  justify. 
The  court  has  decided  that  it  could  not  thus  change  a  pub- 
lic policy  formulated  and  declared  by  Congress;  that  Con- 
gress has  paramount  authority  to  regulate  interstate  com- 
merce, and  that  it  alone  can  change  a  policy  once  inaugu- 
rated by  legislation.  The  courts  have  nothing  to  do  with 
the  wisdom  or  policy  of  an  act  of  Congress.  Their  duty  is 
to  ascertain  the  will  of  Congress,  and  if  the  statute  embody- 
ing the  expression  of  that  will  is  constitutional,  the  courts 
must  respect  it.  They  have  no  function  to  declare  a  public 
policy,  nor  to  amend  legislative  enactments!' 

The  following  assertions  may  almost  be  looked  upon  as 
parting  words  from  a  great  judge  to  his  country.  "  After 
many  years  of  public  service  at  the  national  capital,  and 
after  a  somewhat  close  observation  of  the  conduct  of  pub- 
lic affairs,  I  am  impelled  to  say  that  there  is  abroad  in  our 
land  a  most  harmful  tendency  to  bring  about  the  amending 
of  constitutions  and  legislative  enactments  by  means  alone 


202     CONSTITUTIONAL   DOCTRINES    OF   JUSTICE    HARLAN 

of  judicial  construction.  As  a  public  policy  has  been  de- 
clared by  the  legislative  department  in  respect  of  interstate 
commerce,  over  which  Congress  has  entire  control,  under 
the  Constitution,  all  concerned  must  patiently  submit  to  what 
has  been  lawfully  done,  until  the  people  of  the  United  States 
— the  source  of  all  national  power — shall,  in  their  own  time, 
upon  reflection  and  through  the  legislative  department  of 
the  government,  require  a  change  of  that  policy.  .  .  .  The 
supreme  law  of  the  land,  which  is  binding  alike  upon  all, — 
upon  Presidents,  Congresses,  the  courts  and  the  people, — 
gives  to  Congress,  and  to  Congress  alone,  authority  to  reg- 
ulate interstate  commerce,  and  when  Congress  forbids  any 
restraint  of  such  commerce,  in  any  form,  all  must  obey  its 
mandate.  To  overreach  the  action  of  Congress  merely  by 
judicial  construction,  that  is,  by  indirection,  is  a  blow  at  the 
integrity  of  our  governmental  system,  and  in  the  end  will 
prove  most  dangerous  to  all." 

Justice  Harlan's  Idea  of  the  Position  of  the  Court. — Since 
the  position  of  judges  in  the  interpretation  of  laws  gives 
rise  to  so  much  discussion,  it  is  well  to  consider  this  whole 
question.  An  attempt  will  be  made  to  ascertain  how  far 
Justice  Harlan's  doctrine  on  this  matter  came  from  the  po- 
sition which  it  is  ewdent  that  judges  ought  to  occupy.  There 
is  much  uncertainty  on  this  point  in  the  mind  of  the  public. 
A  person  will  condemn  the  court  today  for  not  reading  into 
the  law  a  meaning  which  he  desires  to  see  there,  and  to- 
morrow he  will  condemn  it  more  severely  for  reading  into 
the  law  a  meaning  which  he  did  not  want  to  see  there.  How 
far,  therefore,  if  at  all,  should  the  judges  try  to  meet  this 
public  approval  or  disapproval?  Thus  is  opened  up  the 
whole  question  of  judicial  legislation. 

There  are  practically  two  arguments  presented,  and  both 
are  presented  on  either  side  of  the  question.  The  first, 
stated  affirmatively,  is  that  the  very  act  of  interpretation 
itself  implies  judicial  legislation;  stated  negatively,  it  is  that 
interpretation,  properly  speaking,  does  not  imply  judicial 
legislation.    The  second  argument  is  that  the  failure  of  the 


JUDICIAL   LEGISLATION  203 

court  at  times  to  legislate  judicially  gives  rise  to  adverse 
criticism  and  weakens  the  power  of  the  court.  But  this 
same  argument  is  presented  on  the  other  side,  with  a  like 
comment  that  a  continued  exercise  of  judicial  legislation 
may  in  time  even  destroy  the  power  of  the  courts.  These 
conceptions  cover  practically  the  whole  field. 

The  word  interpret  used  in  a  legal  sense  has  two  mean- 
ings :  first,  "  the  setting  forth  of  a  fixed  or  certain  mean- 
ing, discoverable  by  a  purely  intellectual  process " ;  and 
secondly,  the  setting  forth  "  of  a  meaning  which  is  indeter- 
minate or  uncertain."^  The  former  is  called  analytical  in- 
terpretation, and  the  latter  selective  interpretation.  Ac- 
cording to  those  who  uphold  judicial  legislation,  the  latter 
is  of  far  greater  importance.  It  arises  when  the  courts 
are  called  upon  to  decide  the  bearing  of  the  law  upon  cases 
which  the  legislative  did  not  have  in  mind  when  the  law  was 
passed.  "  The  fact  is  that  the  difficulties  of  so-called  inter- 
pretation arise  when  the  Legislature  has  had  no  meaning  at 
all;  when  the  question  which  is  raised  on  the  statute  never 
occurred  to  it;  when  what  the  judges  have  to  do  is,  not  to 
determine  what  the  Legislature  did  mean  on  a  point  which 
was  present  to  its  mind,  but  to  guess  what  it  would  have 
intended  on  a  point  not  present  to  its  mind,  if  the  point  had 
been  present."^ 

Thus  the  necessity  of  judicial  legislation  arises.  When 
unforeseen  circumstances  come  up,  and  when  there  is  a  law 
in  existence  which  the  courts  can  stretch  to  apply  to  such 
cases,  they  do  it.  This  is  known  as  selective  interpretation, 
and  amounts,  in  the  long  run,  to  judicial  legislation,  for  in 
the  course  of  time  the  law  may  become  so  much  changed 
that  by  reading  the  statute  in  the  light  of  existing  circum- 
stances the  original  purpose  of  the  law  is  changed. 

Some  persons  who  have  observed  this  necessity  have  con- 
cluded that  since  the  court  changes  laws  it  in  fact  legislates, 
and  it  should  be  frankly  admitted  that  it  is  the  body  that 

1  Editorial,  "  Genuine  and  Spurious  Interpretation,"  in  the  Green 
Bag,  vol.  XXV,  p.  505. 

2  J.  C.  Gray,  The  Nature  and  Sources  of  the  Law,  Sec.  370. 


204    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE   HARLAN 

makes  laws.  Without  going  deeply  into  this  matter,  the 
simple  assertion  will  suffice  that  an  open  assumption  on  the 
part  of  the  courts  that  they  may,  when  they  find  it  neces- 
sary, make  laws  to  suit  their  purposes  would  be  a  danger- 
ous enlargement  of  the  power  of  the  courts.  The  fact  that 
the  judges  must  argue  that  what  they  are  doing  is  not 
legislating,  but  only  applying  laws  already  made,  keeps  them 
from  extending  their  power  over  any  sphere  that  undoubt- 
edly belongs  to  the  legislature. 

On  the  other  hand,  when  the  assertion  is  made  that  inter- 
pretation properly  speaking  does  not  imply  judicial  legisla- 
tion, one  has  in  mind  especially  analytical  interpretation — a 
discovery  of  the  meaning  of  the  law  by  purely  intellectual 
processes.  Strictly  speaking,  those  holding  to  this  theory 
believe  that  the  law  can  be  made  in  advance  of  every  case 
to  be  determined.  All  that  the  courts  need  to  do  is  to  find 
out  the  facts  in  the  case  and  say  what  the  law  directs  for 
that  case.  Their  judgment  is  to  be  mechanical,  and  judges 
are  merely  experts  applying  legal  formulas  to  cases,  and 
lose  sight  of  all  other  considerations. 

But  this  is  not  the  conception  that  modern  jurisconsults 
hold  when  they  assert  that  interpretation  should  not  mean 
judicial  legislation.  .  They  recognize  the  fact  of  legal  fictions 
and  the  necessity  of  judge-made  law  through  slow  processes, 
but  they  oppose  any  quick  and  intentional  change  in  a 
statute  on  the  part  of  the  court.  In  other  words,  they  do 
not  hold  that  judges  should  openly  and  avowedly  perform 
judicial  legislation,  or  that  they  should  underhandedly  argue 
that  what  is  clearly  judicial  legislation  is  within  the  mean- 
ing of  the  statute.  They  do  not  object  to  the  slowly  evolv- 
ing judge-made  law,  developed  from  necessity.  The  latter 
is  finding  law  to  meet  exigencies,  the  former  is  changing 
the  law  to  suit  the  convenience  of  the  judge.  With  them, 
finding  the  law  is  indicative  of  a  great  judge,  but  changing 
the  law  is  indicative  of  arrogance. 

To  which  of  these  classes  did  Justice  Harlan  belong? 
At  the  outset  it  must  be  admitted  that  there  is  no  evidence 


JUDICIAL  LEGISLATION  20$ 

that  he  thought  deeply  of  judicial  legislation  as  a  legal  con- 
cept. His  assertions  were  spontaneous,  and  if  they  show 
him  to  belong  to  the  class  of  great  judges,  it  will  be  all  the 
more  in  his  favor.  It  will  class  him  as  an  unconscious 
artist  in  that  regard. 

Reference  will  need  to  be  made  chiefly  to  the  first  and 
last  cases  studied  under  the  head  of  judicial  legislation. 
Did  the  case  of  United  States  v.  Clark  show  him  to  be  a 
great  or  an  inferior  judge?  No  doubt  Clark  might  have 
suffered  hardship  had  the  case  been  decided  according  to 
Justice  Harlan's  view.  But  was  that  hardship  one  that  the 
judges  could  properly  have  remedied?  The  meaning  of 
the  statute  was  clear.  It  was  evident  that  if  the  law  applied, 
Clark's  claim  would  not  have  been  absolved.  But  since  the 
law  on  its  face  was  written  to  exclude  such  a  case,  and  since 
it  was  impossible  so  to  read  the  statute  that  it  would  except 
him,  the  law  should  have  been  upheld.  Congress  could 
have  remedied  such  a  situation.  There  was  no  excuse  for 
the  failure  of  the  court  to  see  in  the  statute  what  was  really 
there.  And  to  say  the  least,  this  case  does  not  show  Justice 
Harlan  to  be  an  inferior  judge.  It  shows  loyalty  to  the 
Constitution  and  the  firmness  necessary  in  the  upholding  of 
the  steadiness  of  the  law.  Many  exceptions  of  this  nature 
would  make  the  law  weak-kneed. 

The  case  of  United  States  v.  Clark,  however,  is  rather 
an  exceptional  one.  There  is  only  one  other  case,^  as  far  as 
I  know,  where  Justice  Harlan  opposed  leniency  to  the  indi- 
vidual. When  it  was  possible  for  him  to  argue  that  the 
law  allowed  reHef  from  hardship,  he  held  to  that  interpre- 
tation. As  has  been  pointed  out  in  various  places  through- 
out this  study,  he  practically  always  endeavored  to  relieve 
the  suffering  individual,  but  his  sense  of  truth  kept  him 
from  saying  that  a  law  was  not  what  it  clearly  was.  But 
in  the  case  of  the  Standard  Oil  Company  v.  United  States 
there  were  none  of  those  exigencies  which  demanded  judi- 
cial leniency.     Certainly  the  Standard  Oil  Company  needed 

*  United  States  v.  Jung  Ah  Lung,  124  U.  S.  621. 


206    CONSTITUTIONAL  DOCTRINES   OF   JUSTICE    HARLAN 

no  such  protecting  care.  If  there  was  any  real  exigency,  it 
was  that  condition  which  the  phrase  "restraint  of  trade" 
described.  The  pubHc  feeHng  which  the  legislators  were 
seeking  to  put  into  law  was  prompted  by  the  hardship 
brought  upon  individuals  by  the  monopolies.  If  there  were 
any  exigencies  that  demanded  leniency  they  were  certainly 
not  on  the  part  of  the  Standard  Oil  Company. 

Justice  Harlan  did  not  stand  for  the  strict  letter  of  the 
law;  he  stood  for  legality.  In  the  case  of  Louisiana  v. 
Mayor,  etc.,  of  New  Orleans  he  showed  this  by  desiring 
that  a  judgment  against  the  city  be  termed  a  contract. 
Strict  letter  said  that  it  was  not  a  contract,  but  legality  said 
that  the  city  was  liable  to  the  plaintiff.  This  case  is  typical 
of  many.  If  the  law  could  be  found  to  cover  the  case,  he 
believed  in  deciding  that  way.  But  if  a  law  could  be  found 
which  was  expressly  different  from  what  the  judges  wanted 
it  to  be,  he  contended  that  the  latter  should  hold  exactly  as 
it  was  meant.  He  believed  that  Congress  should  supply 
the  laws,  and  that  the  courts  should  interpret  them,  and  he 
used  interpretation  in  the  liberal  sense.  He  did  not  wish 
to  stop  legal  fictions,  but  he  did  wish  to  see  judges  impartial. 

The  second  argument  proposed  need  not  be  discussed, 
except  to  say  that  mere  criticism  of  a  judicial  decision 
seemed  not  to  be  of  great  concern  to  Justice  Harlan.  With 
him  the  criticism  for  bad  law  had  to  be  thrown  on  the 
legislators.  Since  words  have  meanings,  and  since  legis- 
lators have  the  power  of  using  words  and  sentences  in 
their  proper  relation,  he  thought  that  legislators  could  make 
laws  to  fit  certain  circumstances.  If  a  circumstance  arose 
to  which  the  law  applied,  it  was  the  duty  of  the  court  to 
apply  and  enforce  the  law  as  the  legislators  had  made  it. 
It  must  be  remembered  that  the  best  way  to  get  rid  of  a  bad 
law  is  to  have  it  enforced  by  the  courts.  Since  that  is  true. 
Justice  Harlan's  doctrine  that  a  law  should  be  enforced 
exactly  as  the  legislators  meant  it  to  be  enforced  is  a  sound 
one. 


INDEX 


American  Sugar  Refining  Com- 
pany, 92. 

American  Tobacco  Company,  99. 

Amount  in  dispute, — relation  to 
jurisdiction  of  courts,  168- 
172. 

Bailey,  Joseph  W.,  15  (note). 
Beckham,    candidate    for    Lieut. 

Gov.  of  Ky.,  74,  75. 
Behring  Sea  Tribunal,   11. 
Berea    College,    Kentucky,    126, 

136-137. 
Bowdoin  College,  10. 
Bradley,  William,  12   (note). 
Brewer,  Justice,  90. 
Bristow,  General  B.  H.,  10. 
Brown,  Justice,  117,  185. 

Centre  College,  Kentucky,  10. 

Chinese,  discrimination  against, 
137-141. 

Cincinnati,  Republican  conven- 
tion at,  10. 

Contracts, — freedom  of  in  inter- 
state commerce,   114-121. 

Contracts, — relation  of  foreign 
governments    to,    SS-58. 

Contracts, — relation  of  national 
government  to,  52-55. 

Contracts, — relation  of  state  gov- 
ernments to,  43-52. 

Copyrights,   182-183. 

Corporations, — as  citizens,  143. 

Corporations, — taxation  of,  145- 
152. 

Corporations, — under  equal  pro- 
tection of  laws,   142-152. 

Direct  taxes,  176-180. 
Drummers,    taxation    of,     103- 

105. 
Due  Process  of  Law, — definition 

of,  59-^1. 
Due    Process  of    Law, — relation 

to  life  and  liberty,  61-68. 
Due   Process   of  Law, — relation 

to  property,  68-82. 


Employers'  Liability,  121-122. 
Equity  competence,  166-168. 
Esterling,  Blackburn,  13  (note). 
Exports,  taxation  of,  107-112. 
Ex  post  facto  laws,  180-182. 

Federal  immunity,  161-166. 

Field,   Justice,    13,   69,    140,   173. 

Fourteenth  Amendment, — bear- 
ing upon  first  eight,  173-176. 

Franchises, — taxation  of,  106- 
107. 

Fuller,  Justice,  113,  185. 

George  Washington  University, 
10. 

Goebel, — candidate  for  govern- 
orship of  Kentucky,  74,  75. 

Gray,  Justice,  39,   87,    108. 

Gray's  Nature  and  Sources  of 
the  Law,  203  (note). 

Greenbag,  203   (note). 

Gross  railroad  receipts, — taxa- 
tion of,  112-114. 

Harlan,  the  Hon.  James  S.,  10. 

Harlan,  Mr.  John  Maynard,  10. 

Harlan,  Dr.  R.  D.,  10. 

Hayes,  R.  B. — appoints  Justice 
Harlan  to  Supreme  Court, 
12. 

Hayes,  R.  B. — Republican  nom- 
inee of  Cincinnati  Conven- 
tion, 10. 

Holmes,  Justice,  40,  112,  122,  164, 
170,  183. 

Houghton,  Mifflin  and  Co.,  198. 

Indians, — discrimination  against, 
141-143- 

Infantry,  Tenth   Kentucky,   9. 

Insular  Cases,  185-188. 

Interstate  comity,  188-190. 

Interstate  Commerce  Commis- 
sion, beginning  of,   122-125. 

Jim  crow  laws,  89-92,  126,  132- 
134. 


207 


208 


INDEX 


Johns      Hopkins      Studies,      38 

(note). 
Johnson   and    Higgins,   brokers, 

114. 
Jury  trials,  61-68. 

Knight,  E.  C.  Co.,  92. 

Labor  legislation,    190-192. 
Lamar,  Justice,  140. 
Liquor  legislation,  83-89. 
Louisiana  Commission,  11,  12. 

Marshall,    candidate    for    Lieut. 

Gov.  of  Ky.,  74-75. 
Marshall,  Justice,  9,  13,  21,  89. 
Matthews,  Justice,  61. 
McKenna,  Justice,  108,  113,  115, 

122,  185. 
Miller,  Justice,  38,  7i- 
Moody,  Justice,  122. 

Morgan,  John  Tyler,  12, 
Negroes,  discrimination  against, 

89-92,  126-137- 
Northern     Securities    Company, 

97- 

Parkersburg  and  Ohio  River 
Transportation  Company, 
100. 

Peckham,  Justice,  27,  174. 

Peddlers,  taxation  of,  103-105. 

Race, — relation  to  equal  protec- 
tion of  laws,  126-143. 


Race, — relation       to       interstate 

commerce,  89-92. 
Recall  of  judges,  13. 
Removal     of    suits    to     federal 

courts,  153-161. 
Returning   Board   of   Louisiana, 

II. 
Riverside  Literature,   198. 

Self-incrimination,  184-185. 
Shanklin,   Miss   Malvina  F.,   10. 
Sherman    Anti-Trust    Law,    92- 

100. 
SinR-ewald,  K.,  38  (note). 
Standard  Oil  Company,  99. 

Taylor,  candidate  for  Gov.  of 
Ky.,  74,  75. 

Taylor,  Hannis,   12    (note). 

Taxation  and  interstate  com- 
merce,  100-114. 

Tonnage  and  Poundage,  100- 
103. 

Transylvania,  University,  10. 

Troy,  Alabama,  124. 

University  of  Pennsylvania,  10. 

Webb-Kenyon  Act,  86,  89. 
White,  Justice,  108,  113,  115,  120, 

122,  161,  185. 
Wickersham,  Attorney   General, 

12    (note). 
Wilson  Bill,  86,  87,  89. 


VITA 

Floyd  Barzilia  Clark  was  born  September  ii,  1886,  in 
Chesterfield  County,  Virginia.  He  attended  Windsor  Acad- 
emy, Windsor,  Virginia,  and  entered  Richmond  College  in 
the  fall  of  1903,  receiving  the  degree  of  A.B.  in  1907  and 
of  A.M.  in  1908.  Since  graduation  he  has  attended  the 
University  of  Chicago,  summer  session  1909;  Columbia 
University,  summer  session  191 3;  and  the  Johns  Hopkins 
University,  sessions  1911-12,  and  1913-14.  During  1908-9 
he  was  principal  of  the  Dunnsville  High  School,  Dunnsville, 
Virginia,  and  during  191 2-1 3  of  the  Churchland  High 
School,  Churchland,  Virginia.  From,  1909  to  191 1  he  was 
instructor  in  English  at  the  Georgia  School  of  Technology, 
Atlanta,  Georgia. 

At  the  Johns  Hopkins  University  he  was  holder  of  a 
Hopkins  Scholarship,  1911-12,  and  of  a  University  Schol- 
arship, 191 3-14. 


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